How to Respond to a Flexible Working Request

How to Respond to a Flexible Working Request 1920 1280 Commissioning HR
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With COVID-19 forcing homeworking on employers, we expect to see an increase in requests for flexible working as businesses begin to return to the workplace.

Here we set out the legal framework that businesses need to consider in responding to flexible working requests.

KEY POINTS

The Flexible Working Regulations 2014 allows eligible employees a right to submit a request for flexible working to their employer.

The flexibility can be in the:

  • time of work (for example requesting a change to start or finish times, to work different days or to work their hours compressed over a reduced number of days);
  • place of work (for example requesting to work at a different office, or work from home); or
  • hours of work (for example requesting a reduction in working hours).

If the request is agreed, the change will be a permanent change to the employee’s contract, unless expressly agreed otherwise.

There is no automatic right for an employee to change back to their previous working arrangements if their circumstances change or, if the change was for reasons of childcare, their child reaches a particular age, or once the employee no longer has caring responsibilities. Similarly, there is no right for the employer to require the employee to revert to their previous working arrangements. Any unilateral imposition of a different working pattern by the employer would be a breach of the employee’s contract. However, there is no reason why the employee and employer cannot mutually agree a further change at some future point in time.

Eligibility

To be eligible to make a request for flexible working the individual must:

  • be an employee
  • have at least 26 weeks’ continuous service at the date the application is made
  • not have made a request for flexible working in the previous 12 months; employers can decide to waive this if they wish.

Making an Application

The employee is required to make an application for flexible working in writing.

The application should:

  • state that it is an application for flexible working
  • be dated
  • specify the date on which the employee would like to start flexible working
  • detail the change that is requested
  • explain the effects that the employee thinks the requested change would have on the employer’s business
  • explain how the employee thinks any such effects might be dealt with
  • state whether the employee has made a previous application for flexible working, and if so, the date that application was made.

Agreeing to an application

The employer must deal with any request in a ‘reasonable’ manner.

If an employer agrees to a flexible working request immediately, it can write to the employee notifying them that the change is agreed, stating that this is a contractual variation, and confirming the date that the change will take effect. It is likely to be helpful to talk the change through to ensure that both parties understand and agree the proposals. Where a request is accepted, the employer should set out a written statement of the changes to the terms and conditions within one month of the new flexible working pattern beginning.

Disagreeing an application

If the employer does not agree to the change immediately, it should arrange a meeting with the employee as soon as possible after receiving the request. The meeting should be organised for a time, date and location convenient to both parties. The employee should be allowed to bring a work colleague of their choice to the meeting, however this is not a legal requirement.

At the meeting, the application should be discussed, with the aim of trying to overcome any concerns that the employer has identified. If the particular working pattern requested cannot be accommodated, the parties should explore whether there is a suitable alternative working arrangement. The employer is required to write to the employee as soon as is reasonably possible giving a decision on the application. The parties should also discuss if the requested working pattern would have any other implications. For example, if an employee is requesting a reduction in hours, the employer should point out that this would have an impact on the employee’s salary, pension and holiday entitlement.

The employer is required to write to the employee as soon as possible after the meeting, giving a decision on the application. If the decision is to agree to the request, the letter must explain the contractual variation and the date on which the change will take effect. If the decision is to refuse the request, the reason for the rejection must be given and the employer should explain the particular grounds that apply to the refusal. The employer may wish to allow employees to appeal against their decision, however this is not a legal requirement.

Right to Appeal

If the employee wishes to appeal, they should be asked to set out the grounds of their appeal in writing. To ensure that the employer has acted reasonably, the manager hearing the appeal should be someone  not involved in the original decision. The appeal decision should be communicated in writing as soon as possible after the meeting. Again, if the employer decides to refuse the appeal, the employer must identify which of the grounds for refusal apply.

The entire process (from request to appeal outcome) should be concluded within three months unless the parties agree to extend this time limit. The parties can agree retrospectively to extend the time limit provided that they do so within six months of the original request. Ideally, any extension to the time limit should be agreed in writing.

Refusing an application

Requests can be refused if the employee concerned is ineligible to make a flexible working request (for example, if they do not at least 26 weeks service or if they have made a previous request within the past 12 months). An employer can also reject a flexible working request if the employee has failed to set out all of the required information in the request. However, in such cases an employee can simply submit an amended request and, if a request is dismissed out of hand, there would also be a risk of an employment tribunal claim. Best practice would be to notify the employee of the issue and give them a chance to correct it.

In all other cases, an employer can only refuse an application on the following grounds:

  • 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
  • planned structural changes.

Trial Periods

Employers can agree to try a flexible working pattern on a trial basis. The duration of any trial period should be clearly set out in writing and the practicalities of the arrangements should be reviewed regularly throughout the trial period. A conclusion should be reached as to whether the arrangement should become a permanent contractual change before the trial period has expired.

 

Where employers are offering a trial period, it would be sensible to extend the three month time frame for considering flexible working requests.

Breach of the Regulations

If the employee is unsuccessful at an appeal, they can make a complaint to an employment tribunal (the requirement for 2 years service does not apply here) on the grounds that:

  • the employer did not consider the employee’s request in a reasonable manner
  • the employer did not consider the request within the three month time limit (or any agreed extension)
  • the reason given for the refusal was not one of the grounds listed in the regulations
  • the employer’s decision was based on incorrect facts
  • the employer improperly treated the employee’s request as having been withdrawn.

If the tribunal concludes that the employer has failed to comply with legislation, it can instruct the employer to reconsider the application and award compensation that is ‘just and equitable’. This is limited to eight weeks’ pay. Further compensation of two weeks’ pay can be awarded if the employee has not been allowed to bring a companion to meetings. A week’s pay is subject to the statutory cap, which is currently set at £538 per week (from 6 April 2020).

Detriment and Unfair Dismissal

An employee also has a right not to be subject to a detrimental treatment (for example, refusing to consider the employee for a promotion) for making a flexible working request.

If an employer dismisses an employee because they have made a flexible working request, this dismissal will be automatically unfair. In such cases, there is no minimum service requirement in order for the employee to bring a claim.

Depending on the way in which the employer handles a flexible working request, it could also give rise to a constructive unfair dismissal claim. A constructive dismissal occurs where the employer commits a serious breach of the employment contract and the employee resigns in response.

Where an employer has dealt with a flexible working request in a perverse or unreasonable manner, the employee might be able to establish that such behaviour was a breach of contract entitling them to resign in response. It is therefore important that employers comply with time limits and give proper consideration to the employee’s flexible working request.

Discrimination

Direct discrimination occurs where a person with a protected characteristic (such as age, race, disability, religion or belief, gender, gender reassignment, pregnancy or maternity, sexual orientation, marital or civil partner status) is treated less favourably than a person without that characteristic. If an employer, for example, rejected a flexible working request because it was made by a man, whereas a woman’s requests for flexible working was treated more favourably, this could give rise to a claim of direct sex discrimination.

Indirect discrimination occurs where an employer applies, or would apply, a provision, criterion or practice (PCP) to all employees and which puts, or would put, those with a particular protected characteristic at a particular disadvantage and the PCP puts, or would put, an individual with that particular protected characteristic at that disadvantage. Such discrimination is unlawful unless the employer can justify the PCP as a proportionate means of achieving a legitimate aim. A requirement to work a particular working pattern could, for example, be a PCP.

If an employer is faced with a request made under the statutory right to request flexible working provisions and refuses to allow a woman to change the hours or times she works, or to work from a different location (for example, from home) this may be grounds for bringing a claim for unlawful indirect sex discrimination, whether or not the rules for consideration of a request for flexible working have been breached. This is on the basis that women may be at a particular disadvantage compared to men; national statistics show that more women than men have childcare responsibilities and are, therefore, disadvantaged by a requirement to work full-time, or to work at a specific work location. In such a case, the employer would need to show that there was objective justification for the employer to require the employee to work a particular working pattern. There is no cap on the amount of compensation that can be awarded in discrimination cases.

How we Support

Commissioning HR specialises in transformative change and putting people at the heart of business. We are passionate about ensuring Good Work is embedded in organisations and helping South West businesses emerge as ethical employers.

Contact Commissioning HR for advice and support on flexible working requests, and other HR matters.

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Commissioning HR

Deliver professional and credible HR advice, guidance and structure, for positive outcomes for employees, managers, directors, customers, stakeholders and investors across Devon and Cornwall.

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