By Philip Landau, employment lawyer at Zeffertt Weir
Considering flexible working requests from parents with young families is now a legal requirement — and if you’re a manager, you need to know how to handle requests.
The government is also being called upon to extend flexible working rights to a wider demographic, by the Chartered Institute of Personell and Development, among others. The points below will also help you develop the right HR infrastructure for considering a wider flexible working system that goes beyond just those whose requests must be legally considered.
Philip Landau, employment lawyer at Landau Zeffertt Weir, writes that there are 14 things an employer must consider.
Key points that an employer must consider before implementing a flexible working strategy
1. Employers must adhere to the procedure’s time limits. They must hold a meeting to consider the request within 28 days after the date the application is received and then inform the employee in writing of their decision within 14 days of the date of the meeting.
2. Employers can only decline requests for flexible working on recognised business grounds (rather than as a consequence of personal reasons specific to the employee).
3. They should consider how an employee’s colleagues will cope if one particular employee's working pattern has changed. If there is an inability to reorganise work among existing staff then this may be a legitimate reason to deny the request.
4. It may be that working from home, for example, would have a detrimental impact on the employee’s output, in terms of quality and performance - this should be a factor employers should consider. Remote working is a feasible option for many businesses, but some companies require people to be on-site — if they need to be available for meetings or to supervise others, say.
5. Employers should assess how a change in working hours will affect the employees’ contribution to the business, and whether the flexible working will have a detrimental effect on the company’s ability to meet customer demand. It may be that arriving later, for instance, means that the employee is absent at a crucial part of the business day. Conversely, it may be that working from home could facilitate their ability to provide extra cover at peak hours, improving the service on offer to clients. It may even be that there is little business need for an employee to work during the hours they have requested. It would be unreasonable for an employer to consent to a flexible working day which does not fit with the incoming workload - for example if the job role is dependent upon interaction with other businesses during their particular working hours.
6. Employers should consider the burden of additional costs which flexible working may cause the business.
7. It may be that the timing of the request for flexible working is not compatible on business grounds, for example if the company has planned structural changes which are in motion and a flexible working request does not fit with these planned structural changes, an employer is within their rights to refuse the requests.
8. Employers could consider a trial period to assess whether a flexible working request is feasible.
9. They must explain to an employee why their request has been declined.
10. Employers must bear in mind that a request that is made and accepted under the statutory right will normally be a permanent change to the employee’s contractual terms and conditions. Employees do not, however, have a statutory right to revert back to their original working conditions. An employee who previously requested reduced hours and took a pay cut has no statutory right to increase their hours again and thereby increase their salary. Temporary flexible working arrangements can however be agreed -obviously when it comes to parental or carer responsibilities, sometimes a permanent change will not be the best option for the employee.
11. When actioning an accepted request, consideration needs to be made for health and safety. For example, if an employee is working from home, the health and safety requirements ordinarily imposed within the workplace will need to be assessed in their new working environment.
12. Employers must be careful to consider each employer’s application individually and objectively, without comparing one employee’s need for flexible working against another’s.
13. When it comes to flexible working requests, Employers should bear in mind the influence of discrimination and unfair dismissal legislation. Sex Discrimination may for example prove relevant when female employees request a return to work part time after maternity leave. Moreover, an inconsistency in the granting of flexible working when it comes to an employee’s sex may give rise to a discrimination claim. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations may become relevant to an employee who has requested flexible working. For example, if the actioning of a flexible working request results in a reduction of an employee’s hours, they should nevertheless still be entitled to the same rights as full time workers when it comes to opportunities for promotion and other benefits. A refusal of flexible working could amount to constructive dismissal if an employee feels they have no option but to resign as a result.
14. A tribunal does not have the power to question the employer’s business reasons or consider whether the employer has acted fairly or reasonably, however, employers are requested to back up any facts relating to the grounds used for refusal. A decision to refuse flexible working based on incorrect facts may give an employee a reason to dispute the decision at an employment tribunal.
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