15/07/2014

By Richard Smith, Head of Employment Law, Croner

On 30 June, flexible working law was extended to enable all qualifying workers in England, Scotland and Wales to make a flexible working request.

Research by YouGov for Croner in March this year found that despite making it easier for people to work flexibly, the majority of employees (3/4) won’t be taking advantage of this opportunity, which will come as a welcome relief to small business owners worried about the impact this will have on their business.

Nevertheless, more employees may want to take advantage of flexible working and the Employment Advisory Service team at Croner has put together some of the most frequently asked questions and answers to help manage these requests.

Q: The new legislation says we have to deal with requests in a “reasonable manner”, what does that mean?

A: The legislation does not define what is meant by “in a reasonable manner”. However the ACAS guide on handling requests to work flexibly in a reasonable manner seems to suggest that following a fair and transparent procedure will satisfy handling requests in a reasonable manner. This would include:

• Having a flexible working policy in place
• Arranging to discuss an employee’s request with them as soon as possible after receiving it
• Allowing an employee to be accompanied by a colleague or a trade union official to the meeting if they wish
• Informing the employee of a decision on their request as soon as possible in writing setting out the right of appeal if the request has been refused
• Concluding the process, including any appeal, within three months.

Q: Can we refuse a flexible working request?

A: Yes you can refuse a request, however there are limitations. An employer can only refuse a flexible working request for one or more of the following eight permitted reasons:

1. A burden of additional costs
2. A detrimental effect on ability to meet customer demand
3. An inability to reorganise work among existing staff
4. An inability to recruit additional staff
5. A detrimental impact on performance
6. Insufficient work during the hours the employee proposes to work
7. Detrimental impact on quality
8. Planned structural changes.

The reason(s) why the request is being rejected needs to be clearly stated in a letter to the employee informing them of the outcome of their request. The employee will then be able to lodge a written appeal if he or she chooses if the decision isn’t in their favour.

Q: We have had a number of people asking to work flexibly, who takes priority?

A: Each flexible working request should be assessed on its own merits. The employer should have regard to the business case for whether the request can be granted and the impact of refusing a request.

Other factors employers could take in to account include:

• Who made the request first? However you will not always be able to use this to make a decision as consideration must be given to the reason for the request.
• Have any of the employees made a flexible working request in the last 12 months? If so, they can’t make another request until a full year has passed.

Q: We have received some conflicting flexible working requests, how should we deal with them?

A: Again, all requests for flexible working should be assessed on their own merits. When considering requests employers should think about the benefit to the employee in agreeing to his or her request and also the impact that a refusal may have, i.e. that the employee could no longer continue to work for the employer.

Employers should also be mindful not to discriminate against employees on the basis of any protected characteristics. For example, only agreeing to flexible working requests from heterosexual parents so that they can look after their child, could lead to a discrimination claim from a gay or lesbian employee if they are being treated less favourably because of their sexual orientation.