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It has recently been reported by HR News that 9 in 10 of the UK’s workforce work flexibly or would like to. Employers who receive flexible working requests from employees should be aware of the potential risks, and there are some key things they can consider to ensure a fair process is followed.
WHAT IS A FLEXIBLE WORKING REQUEST?
Under the Employment Rights Act 1996 (ERA) and Flexible Working Regulations 2014, all employees with 26 weeks’ continuous service with the same employer at the time of the request have the right to request a change to their contractual terms and conditions.
An employee can submit a request to:
change the hours they work
change the times when they are required to work (starting later in the day)
change the location of work (between their home and any of the employer’s workplaces).
HOW SHOULD AN EMPLOYER DEAL WITH A REQUEST?
Employees can only make one request to work flexibly within a 12 month period and employers have a broad duty to deal with applications in a ‘reasonable manner’.
There is no statutory definition of what a ‘reasonable manner’ means, however, the Advisory, Conciliation and Arbitration Service (ACAS) Code and Guide on handling requests suggests that this involves meeting with the employee soon after receiving a written request and carefully considering any request by looking at the benefits of any requested changes against any adverse business impact.
An employer must consider and decide all requests including any appeals within three months of receipt of a request unless the parties agree to extend the time limit.
A request must be considered objectively and can only be rejected for one of eight business reasons, such as the request burdening the company with additional costs or having a detrimental effect on productivity. An employment tribunal will expect to see the employer’s evidence supporting any decision to reject a request.
POTENTIAL RISKS FOR EMPLOYERS
If an employer fails to take into account the needs of staff with caring responsibilities when developing and implementing a flexible working procedure, they risk a potential claim for indirect sex discrimination. As the majority of carers are female an employer should ensure that they do not discriminate unlawfully by rejecting a flexible working request.
Shaw v CCL Ltd (2006) highlights the importance of employers handling flexible working requests fairly. An employee on maternity leave submitted a flexible working request to return to work at the end of maternity leave on a part-time basis. Her request was refused and she resigned in response. The Employment Appeal Tribunal held that the employer’s refusal to allow part-time work was direct and indirect sex discrimination and a breach of contract, entitling the employee to resign and claim constructive dismissal.
It is important that employers follow a fair process in handling flexible working requests as failure to do so may result in employment tribunal claims for sex discrimination or constructive dismissal.
MINIMISING THE RISK OF CLAIMS
To minimise the risk of potential claims employers should:
carefully consider flexible working requests and enter into a dialogue with employees to assess the merits of the requested changes and whether the application can be accepted
keep a paper trail to show that they have fully considered the request
if rejecting a request fully explain the reasons to the employee and the potential impact on the business have a flexible working policy to ensure consistency in managing requests and have a clear procedure in line with the ACAS Code of Practice, ‘Handling in a reasonable manner requests to work flexibly’ consider using a trial period rather than rejecting a request where it is unclear whether the requested arrangements are sustainable
ensure one of the prescribed business reasons applies before rejecting a request and back it up with evidence.
If you are an employer with any specific queries about flexible working requests, please contact our employment team for further advice.
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