According to a recent study by Timewise, one in six of those earning more than £40,000 a year, work fewer than five days a week.
This is a rise of 12% in two years – fairly significant. A high proportion of those working fewer than five days are likely to have applied for flexible working and, in light of flexible working becoming more popular, what is it and what should an employer do (or not do) when a request for flexible working has been received?
What Is It?
Flexible working is the name given to any type of working pattern which is different from an employee’s existing one, for example, reduce/vary working hours or days or home working.
Who Can Apply?
All employees who have been employed continuously with the same employer for a period of 26 weeks or more and who have not submitted another request in the preceding 12-month period can apply for flexible working. The application must be in writing, set out the working pattern requested and a start date, explain what the effect on the business might be and how it can be overcome and confirm whether the employee has submitted another flexible working application in the previous 12 months.
How Should Employers Deal with Applications?
The process of agreeing flexible working used to be fairly complex with specific time limits and meetings required. However, since 30 June 2014, the process is now much more user-friendly with the only requirement being that requests must be dealt with in a ‘reasonable manner’ and the time between receipt of the request and the final decision (including the outcome of any appeal) must not be more than three months unless a longer period has been agreed with the employee.
There is no hard and fast rule of what “reasonable” means, but Acas’ Code of Practice on handling flexible working requests suggests it would include:
- Meeting with the employee to discuss their request. The employee is entitled to be accompanied at the meeting by a trade union representative or a colleague.
- Investigating whether the request can be granted or if there are alternatives.
This may include a trial period. The employee does not have the right to request a trial period but there is nothing preventing the employer agreeing to one. Employment Tribunals have been critical of employers who appeared to be concerned to explain why a requested working pattern could not work rather than investigating how it could be accommodated. It is, therefore, suggested that it may be more beneficial for an employer to implement a trial period and try to find a way to make the request work, rather than simply reject it. The length of trial period will be dependent on the circumstances but should be no longer than required to make a reasonable assessment of the proposed arrangements. If the trial period is likely to have an impact on the employer making a decision within 3 months, an extension should be agreed with the employee.
- If refusing the request, the reason(s) must fall within one or more of the following 8 statutory business grounds:
- The burden of additional cost
- 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; or
- Planned structural changes.
Employers should identify which ground(s) apply and explain why.
- Communicating the decision in writing and confirming any variation to the employee’s contract in writing within 1 month of the change taking effect.
- Giving the employee the right to appeal.
Potential Discrimination
Although flexible working falls under the umbrella of family friendly rights, all employees with the requisite period of service are eligible to make an application and it is possible that employers will have to deal with competing requests for a variety of reasons, not just the care of a dependent child. Although there is no obligation on an employer to make value judgments about the most deserving case, you should be alive to discrimination issues and ensure you fully understand why an employee is making a request for flexible working, taking advice if there is anything that gives cause for concern.
Policies
We recommend that you put in place a flexible working policy with guidance as to how requests, including competing requests, are dealt with to ensure that requests are dealt with consistently and reasonably and employees know what to expect.
If you are an employer and have questions about dealing with flexible working requests, or any other employment law issue please contact Sarah Matheson or Noele McClelland in our specialist Employment Law team on. on 01382 229111, alternatively contact a member of the Employment Law team.
