Top tips for employers navigating the flexible working minefield
I run an estate office for my employer. Both the estate manager and our accounts administrator have made flexible working requests within a couple of days of each other. How should I respond to them and deal with their requests? What factors do I need to bear in mind?
Requests no longer need to be made in connection with a caring commitment
Remember that since 30 June 2014, any employee with 26 weeks’ or more continuous service can request flexible working for any reason, provided that they have not already made a flexible working request in the last 12 months. Previously only parents or those caring for adults could request flexible working for reasons connected with their caring commitments.
Don’t confuse flexible working with part-time working
There is a common misconception that flexible working means part-time working. Whilst it can include part-time working, it does not have to, as it’s much broader than that. It can encompass any change to working hours, times or place of work. The options are endless including compressed hours, term-time working, flexi-time, job sharing and homeworking to name a few.
Deal with requests reasonably, but there is no obligation to grant an employee's request
There is no right to work flexibly. There is only a right to request flexible working and to have that request dealt with in a reasonable manner (and within 3 months, including any appeal), unless the parties agree an extension of time.
The eight statutory business reasons for refusing a request are the same as those which applied previously. They are: the burden of additional cost; detrimental ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality or performance; insufficiency of work during the periods the employee wishes to work; or planned structural changes.
Consider carefully whether you want to ask an employee the reason for their request
Even if you do ask them why they want to work flexibly, employees are not obliged to tell you, although it may be beneficial to them to do so.
It may allow you to clarify whether a temporary, rather than permanent contractual change is preferable, for example, if the employee wishes to work flexibly during a short course of study, or whilst they are taking care of a sick relative. You could agree that the changed working pattern will be effective for a fixed period or that on the occurrence of a specified event, such as the relative getting better or unfortunately passing away, the employee will revert to their pre-existing working arrangements.
You could consider instead whether any alternatives could better accommodate the employee’s needs, such as taking annual leave or unpaid time-off under the employee’s statutory right to “time-off to care for dependents” or unpaid parental leave.
Start from a positive standpoint, seeking to overcome any potential hurdles
Do not try to justify from the outset why a requested working arrangement cannot work in practice, particularly if you have not given it due consideration. Employment Tribunals are very critical of such an approach and have commented that a certain level of cost and inefficiency is “an inevitable consequence of the obligation on employers to consider family friendly policies."
You are not required to make value judgments about the most deserving request
Consider each request on its merits in the context of your business and consider whether your business can accommodate the request, rather than focusing on the reason for the request, which may be irrelevant. That way you avoid getting into discrimination territory.
Consider a trial period, instead of rejecting a request outright
If you are unsure what the effect of a flexible working arrangement will be on the business, and what impact it may have on other employees’ flexible working requests, a trial period for a short fixed period can be used to gauge whether the arrangement is sustainable over the longer term. The trial period should include a formal review process under which the parties can discuss how the new arrangements are working and enable them to make any necessary adjustments.
If you reject a request, be ready to explain why a trial period was not feasible, particularly where the employee has suggested one.
Deal with competing requests on a first come first served basis
If you do so, remember to take account of any relevant changes to the business context when considering further requests, having accepted the first one.
Discuss competing requests with other employees who have also made requests outright
This will enable you to see whether, with some adjustment or compromise by all of them to the working arrangements they have requested, each can be accommodated.
If you know the reason for the request, take account of the particular features of a flexible working request, such as accommodating a disability or caring obligations, which may limit an employee’s ability to vary or compromise on the flexible working arrangements they have requested. Be mindful that such employees may have no option but to leave, if their requests can’t be accommodated.
Consider the position of any staff members who are already working flexibly
See whether they would be willing to vary their arrangements, so that other employees’ requests can be accommodated, if the reason they made the request originally is no longer applicable. For instance, if they made the request for child care commitments, but their children are now grown up.
Bear in mind, that agreeing to a request constitutes a permanent contractual change (unless the parties agree otherwise), so employers can’t unilaterally vary existing flexible working arrangements without the employee’s consent.
Get your culture right, as it is critical to the successful implementation of a flexible working policy
Your culture should not be such that employees are fearful that if they make a flexible working request, their career promotion prospects will be damaged or that it will have an adverse impact on their pay, bonus or status. Any senior employees who work flexibly should be role models for others and could mentor more junior members of staff.
Be mindful of potential discrimination claims from those making informal requests, as well as those making formal flexible working requests
Do not dismiss a request just because the employee does not meet the eligibility criteria under the statutory scheme, (either because he/she is not employee, or because he or she does not have the requisite length of service, or because he/she has already made a request in the previous 12 months) or because he/she has made a technical error in request.
Whilst rejecting such an application may not incur liability under the statutory procedure; any employee can make an informal request and failing to consider it properly could give rise to a more costly discrimination claim for which compensation is unlimited, based on the employee’s financial loss (if any) going forwards and injury to feelings awards of up to £33,000.
By contrast, compensation for claims under the statutory flexible working scheme are capped at a maximum of eight weeks’ statutory pay (currently £489 per week.) Instead consider each application on its merits and refer to the statutory business grounds when refusing any application, whether formal or informal, and whether made under the statutory scheme or otherwise.