Fearful of being inflexible?
Employment expert Emma Saunders of law firm Cripps Pemberton Greenish outlines the obligations of practice managers when it comes to requests for flexible working – and warns about the dangers of an unfair refusal.
Employees with at least 26 weeks’ continuous employment can make a request for flexible working.
Their applications must be received in writing, be dated, and state that this is a statutory request. The request should specify the change being sought and when the employee would like it to take effect. It should also explain what effect, if any, they believe the change would have on the GP surgery and how this might be dealt with.
It is important to note that the entitlement to make a request does not extend to an entitlement to flexible working. Practices must consider applications in a “reasonable manner” and requests must be dealt with within three months, including any appeals. Requests may be refused on one or more of eight statutory grounds. These are: the burden of additional costs; detrimental effect on the ability to meet patient demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on service; detrimental impact on practice 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 – suggests employers meet to discuss the request with the member of staff as soon as possible. The employee should be allowed to be accompanied to this meeting.
When deciding whether to grant the request, the practice should look at the benefits to both the organisation and the employee (for instance the potential to offer out-of-hours appointments) and balance these against any disadvantages (fewer staff at busy periods). If in doubt, the practice may wish to implement a trial period before making a decision.
Once the decision has been made, the employee should be notified in writing as soon as possible. If the request is rejected, it is advisable to state the reasons for this, the ground the practice is relying on and also to give the employee the option to appeal. If the request is accepted, the surgery should provide a written statement of the change of contract within one month of its effect.
Should the practice not comply with its obligations, an employee can bring a claim for procedural failings. Where a tribunal finds for the employee it can make an order for reconsideration of the request and an award of compensation. This may be up to a maximum of eight weeks’ pay.
While redress under the statutory scheme is limited, practice managers need to be aware of the interrelationship between flexible working requests and other forms of statutory protection, in particular, discrimination. If the refusal cannot be objectively justified the surgery may be vulnerable to a discrimination claim – there is no financial cap to this.
First appeared in Practice Management February 2017.