How flexible do you have to be?
Employment law solicitor Natalie Ruane looks at how flexible employers should be in relation to working hours.
We are often told that allowing more flexible approaches to working hours and practices helps with retention of staff and increases motivation but what if you can’t adapt a particular role or working pattern and/or what if there are so many staff already working flexibly that the thought of one more leaves you cold?
As the range of staff able to apply for flexible working (grandparents are likely to be next) continues to expand, the key thing to remember is that the legal right is to “request” and to have that request considered in good faith. There is no legal right to have flexible working and so employers can refuse to agree to the request provided a fair process has been followed.
The Start of the Process
An employee wishing to apply to work flexibly must do so in writing including the following information:
- their reason for making the application;
- their proposed flexible working plan;
- an explanation of what effect they think their proposals will have on the business and how any detrimental impact could be minimised;
- a start date for the proposed change which allows reasonable time for the employer to consider and implement the proposal;
- the date on which the application is made and.
The Employer’s First Step
Upon receiving the request, the employer should carefully consider the proposal looking into the possible benefits as well as any adverse impact on the business. When conducting this exercise, the employer must be careful not to dismiss the suggestion just because it hasn’t been tried before or even because it hasn’t worked in the past.
The Employer should also give some thought to timescales. Although the rigid rules on how long an employer has to deal with each stage of the process have disappeared, employers are legally required to have dealt with all aspects of the process including hearing and deciding the outcome of any appeal within 3 months of receiving the request.
If the employer is willing to agree to the request on either a temporary or permanent basis, the employer needs to write to the employee to confirm acceptance and the date on which the new arrangements will start.
Next Step for Employers who aren’t sure
If the employer is unsure or minded to refuse the request, the employer has to invite the employee to a meeting to discuss the situation before making a final decision.
The employer should try to be open minded at the meeting and, rather than rejecting the proposal out of hand, should propose alternatives to see if a compromise can be reached.
If the issue is that too many staff have already been granted flexible working (leaving no cover on certain days) the Acas Code suggests the other employees should be asked whether they would be willing to alter their working patterns. This can be done before or after the meeting.
Making a Decision
Any compromise arising out of the discussion should be confirmed in writing. As should any variations agreed with other staff.
If the employee wasn’t able to persuade the employer to make any changes and/or other staff wouldn’t accept changes, then the request can be rejected but the reasons for rejecting the request will only be fair, if they fall into one of the following categories:
- The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes.
Most challenges to the flexible working process arise because the employer tries to rely on a ground for rejecting the request which isn’t in the above list. For example, an employee can’t work from home because the role is client facing.
The other danger is stating that a request has been rejected without having the evidence to back up the statement. For example, although inability to recruit additional staff is often cited, if no attempts have been made to try to recruit someone to cover the hours left open by the flexible working request, how can the employer legitimately make that claim?
Challenging the Decision
Employees have the right to appeal against the refusal of a request to work flexibly. The employee should appeal in writing. Upon receiving notice of an appeal, the employer needs to arrange an appeal hearing and should write to the employee after that hearing confirming whether they accept the appeal and are willing to look at the request again or whether the appeal is rejected and the original decision will stand.
The appeal decision is the final internal step.
Top tips for HR Managers
- Check eligibility – an employee must have 26 weeks continuous service and must not have made a successful application to work flexibly in the preceding 12 months.
- Get your timetable sorted - flexible working requests should be dealt with within three months from receipt to notification of decision on appeal.
- It’s good practice to allow an employee to be accompanied by a workplace colleague or TU representative during any meeting to discuss a flexible working request.
- Ensure that the reason given for refusing a request is one of the permitted reasons highlighted above and that there is evidence to support the position adopted – assumption or belief is not enough!
- If the decision is based on instinct rather than evidence, consider agreeing to a trial period during which the workability of the proposal can be assessed and the necessary evidence can be gathered.
- Develop a policy that provides a framework and timeframe under which to deal with requests.
Any employers who have had problems dealing with requests and who are looking for guidance should contact Natalie Ruane at Burnetts Solicitors on 01228 552222 or by email at email@example.com
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Friday 13th November 2015