Flexible working is when employers give staff more flexibility over where, when and what hours they work. Flexible working arrangements are becoming increasingly popular, and are often considered a staff benefit.
It‘s important that employers are implementing and updating flexible working policies in line with their legal obligations, and trends and dealing with and responding to their flexible working requests correctly.
- Businesses who don’t manage flexible working correctly could:
- struggle to attract and retain talent
- see an increase in potential claims for failing to respond and deal with requests
- notice decreased job satisfaction amongst employees
- suffer prolonged absences as a result of absenteeism
- overall, suffer from having an inefficient and unproductive workforce.
Embracing the concept of flexible working can bring great benefits to an employer such as allowing the business to better meet trade needs by ensuring that staff are working at the busiest times and could even reduce a business’ overheads.
Who can make a flexible working request?
All employees with at least 26 weeks continuous employment have the right to make a request for flexible working. A request can include a change in the hours that the employee works, the time the employee is required to work and/or the employee’s place of work. Employees with less than 26 weeks’ service can still make a request but the employer is not usually obliged to consider this.
Can an employer refuse flexible working?
Employers must deal with flexible working requests in a reasonable manner and notify the employee of their decision within three months.
Employers can refuse flexible working requests on one of the below business grounds:
- The burden of additional costs
- Detrimental effect on ability to meet customer demands
- 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 ACAS guidance on refusing flexible working requests, but no definitive statutory definition of what amounts to “a reasonable manner”. It is sensible for employers to take legal advice at an early stage if a request is made and have policies in place, to demonstrate these if required at an employment tribunal.
In order to minimise the risk of potential tribunal claims employers should ensure that they meet with the employee to discuss the request, consider allowing the employee to be accompanied to the meeting, conduct a risk analysis weighing up the advantages and disadvantages of the request and only reject the request on one of the above grounds.
If a tribunal upholds an employee’s complaint for failing to deal with the request as above, then they could be required to reconsider the employee’s application and/or award the employee compensation of up to 8 week’s pay, subject to the statutory limit on a week’s pay (currently £508 per week). They may also be exposed to other claims by that employee.
Sex discrimination and flexible working
The manner in which they deal with a flexible working request could lead to a potential sex discrimination claim. The ACAS guidance on flexible working indicates that employers and managers should avoid making assumptions when assessing these requests. All requests should be assessed consistently and with regard to business circumstances.
However, acting consistently does not necessarily mean that an employer can adopt a blanket flexible working policy accepting or refusing all requests. When assessing whether something is discriminatory the tribunal will look at any discrepancies in the acceptances or refusals of a flexible working request. It will also consider the impact of any decision made on the individual employee concerned. If an employer does have a blanket policy in place, a tribunal may still uphold a claim for indirect sex discrimination if in practice the impact of that policy has a greater impact on one sex over another (and/or on a particular employee because of their sex).
If an employer’s policy is found to be discriminatory, their only line of defence is to show that it had an objective reason, not connected with sex, for applying that policy, such as a good business, commercial or administrative reason for the difference in treatment. Rarely, however, will it be open to an employer to argue that part-time employees are less productive or experienced than full-time employees. Any restrictions on eligibility under a flexible working policy must therefore be based on real operational needs and must be objectively justifiable.
Flexible working and constructive dismissal
A constructive dismissal occurs where, in summary, an employee feels forced to resign because of the actions of their employer. To be successful, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify them resigning and that they have resigned as a result of that particular breach, either one event or a “last straw”.
It is important that employers are dealing and responding to their flexible working requests appropriately and effectively and monitoring and updating their flexible working policy on a regular basis. Not only will this ensure that employers are not caught out by these types of claims, but it will also enable them to reap the benefits that a flexible working environment provides as well as continue to attract and retain the best talent for their business.
If you need advice about handling or responding to flexible working requests, and want help at any stage of the process talk to our employment law specialists. Call us on 0800 0131165 or email firstname.lastname@example.org
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