What obligations do employers have when considering flexible working requests?

3 January, 2017
by: Cripps Pemberton Greenish

Background

Since 2014, employees with at least 26 weeks’ continuEmployment - Flexible workingous employment can make a request for flexible working.

Although one of the most common reasons to make a request is to assist the employee with their childcare arrangements, employees do not actually need a specific reason to make a request. The right can be used, for example, by someone who wishes to undertake charity work, study, travel or reduce their hours in readiness for their retirement.

There are also very few limits to what an employee can request by way of a variation. For example, applications for part-time working, compressed hours, term-time working or shift-working should all be considered, amongst others. Each request should be considered on its own merits, looking at its business case.

Applications must be received in writing, dated and state that it is a statutory request. They should specify the change that the employee is seeking and when they would like the change to take effect. They should explain what effect, if any, the employee thinks the change would have on the employer and how such effect might be dealt with. The application must also specify if and when the employee has made a previous application.

Obligations on employers to consider requests

It is important to note that the entitlement to make a request does not extend to an entitlement to work flexibly. Employers must consider applications in a “reasonable manner” and requests must be dealt with within 3 months, including dealing with any appeals. Employers can refuse requests on one or more of the eight statutory grounds below:

  • The burden of additional costs;
  • Detrimental effect on the 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.

There is no statutory definition of “reasonable manner” but the ACAS Code, which sets out best practice, outlines that employers should arrange a meeting to discuss the request with the employee as soon as possible after the request is made. Employees should be allowed to be accompanied to such meetings.

When deciding whether to grant the request, employers should look at the benefits of the request for both the employee and the employer and balance these against any disadvantages the implementation of the request may have on the business. Where an employer is unsure of the practical implications of a request, they may wish to implement a trial period as opposed to rejecting the request straight away.

Reaching a decision

Once a decision has been made, the employee should be notified in writing as soon as possible.

If a request is rejected, it is good practice to state in writing the reasons for the rejection, the ground the employer is relying on and to provide the employee with the option to appeal.

If the request is accepted, employers should provide a written statement of the changes to the employee’s contract within one month of the change taking effect.

Failure to follow the correct procedure

If an employer fails to comply with its obligations (as set out above) an employee can bring a claim for procedural failings by the employer. Where a tribunal finds such a claim well founded it can make:

  • an order for reconsideration of the request; and
  • an award of compensation, of such amount as the tribunal considers just and equitable, up to a maximum of eight weeks’ pay.

While redress under the statutory scheme is limited, employers need to be aware of the interrelationship between flexible working requests and other forms of statutory protection, in particular discrimination. If the refusal of the request cannot be objectively justified the employer may be vulnerable to a discrimination claim. There is no financial cap on the compensation awards payable in such claims.