Ten top tips on dealing with flexible working requests
From 30 June 2014, the right to request flexible working request was extended to all employees providing they have 26 weeks continuous employment.
The right to request flexible working applies to all employees providing they have 26 weeks continuous employment and have not made a flexible working request in the previous 12 months.
If a request is not dealt with in line with the legislation and ACAS Code of Practice, an employee may bring a claim to the Employment Tribunal. In successful claims the Employment Tribunal can order you to reconsider the application and may award compensation of up to eight weeks' pay. An employee may also try to assert that any failure is discriminatory and if successful there is no limit to the award the Tribunal may make.
It may be that dealing with flexible working requests is very much second nature within your organisation. However, it is always useful to refresh yourself on the basics to ensure you are dealing with requests in the best way possible.
Here are our top 10 tips to help you deal with flexible working requests fairly and correctly.
1. Follow a timetable and implement a flexible working policy
Be conscious of the ticking clock. Unless an extension is agreed with the employee, you have three months from receipt to consider the request and issue a decision. Unless you are simply accepting the request, a meeting should be arranged with the employee as soon as possible following receipt to discuss the request. Following the meeting, you should send a letter to the employee setting out your decision and the right of appeal. An appeal meeting should be held as soon as possible after the appeal is lodged and the outcome communicated as soon as possible following the meeting. To avoid any disputes about how requests will be dealt with, it is advisable to have a flexible working policy setting out the timetable. Please get in touch if you would like us to review or draft a policy for you.
2. Approach the decision with caution
Remember that you will need to be able to justify your decision. A thorough factual investigation of the viability of the working pattern sought is key. You should gather as much information as possible to allow you to assess the request fully. Be wary of views such as 'we do not have part time jobs' or 'that shift is at full capacity' without any supporting evidence. For example, if there is a view that a particular shift is at full capacity, you should explore whether it is feasible to re-organise that shift or whether hours outside standard shifts times are workable.
3. Consider alternatives
Where a request cannot be agreed, think about other options that could be agreed. This is your chance to show that you are a reasonable employer with the golden 'can-do' attitude which Tribunals will look favourably upon.
4. Adopt a 'can-do' tone at the meeting and in correspondence
Conduct the meeting with a positive attitude which demonstrates the spirit of actively trying to reach an outcome that works for both of you. Take care not to be dismissive (or to be seen to be dismissive) of the proposal from the outset. The purpose of the meeting is to explore the request with the employee and to consider all of the options.
5. Do not base a decision on a fear that you might 'open a can of worms'
This is understandably a common worry amongst employers. You must be careful not to pre-determine your decision because you fear that in granting the request you would be setting a precedent. Each request must be considered based upon its own individual circumstances. There is no blanket assumption that because you were able to accommodate the arrangement for one person you will be able to do so for another.
6. Consider a trial period
Trial periods are a useful tool to test out an employee's request, without refusing it at the outset due to concerns the arrangement would not work effectively in practice. It is important to gain the employee's agreement to the trial period. Record this agreement in writing, carry out a review before the trial period expires, and notify the employee of the outcome of the trial period.
7. Ensure that a refusal falls within one of the prescribed business grounds
It is surprising how many refusal letters don't! If you refuse the request, the refusal must be for one (or more) of the prescribed business grounds and this should be 'spelled out' clearly to the employee with an explanation as to why the ground(s) apply. The prescribed business grounds are:
- the burden of additional costs;
- 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; and
- planned structural changes.
We would recommend including in the letter any factual evidence you have taken into account in deciding that the business ground(s) apply.
8. Keep in mind who may have sight of your correspondence
Often, we do not think about who may see our emails and other internal documents other than the intended recipient. However, it is important to remember that internal correspondence relating to an employee's request is disclosable if the employee brings a claim. It would act as evidence of the reasoning and factual investigation behind the refusal. Therefore, take care in the tone and content of the emails to avoid the risk of potential discrimination or appearing to have decisions which are pre-determined or made for non-permissible reasons.
9. 'First come first served'
You may receive multiple requests within one team. The first step is to consider the potential impact of granting all of the requests. If this is not possible then the next step is to adopt a fair system to decide which requests are granted and which are not. As requests can now be made for any reason, perhaps the fairest approach is to deal with the requests on a first come first served basis and accept as many as are workable. However, it is always worth carrying out a 'risk assessment' to identify which (if any) are most likely to lead to claims against the organisation if refused and making your decision based on those risks. We would recommend taking advice if you intend to adopt this strategy to avoid any unintended consequences.
10. Remember to document the change – there is 'no going back' without another request
If the request is accepted, the change is permanent and irreversible even if the arrangement subsequently causes significant operational difficulties. You must make it clear to the employee that this is a permanent change and they can only request a further change after twelve months. Issue a new or amended contract to reflect the new arrangement and the start date (or at least ensure there is a clearly documented variation to the contract). Ideally the employee should sign a copy of the revised contract which you can then retain on their personnel file.
If you require assistance in dealing with a flexible working request, writing a flexible working policy or reviewing an existing policy please speak to your usual Weightmans contact