Flexible Working; a checklist

Employers tend to fear flexible working requests. However, this fear is unnecessary and arises because most employers believe that employees have the right to work flexibly rather than a right to request to work flexibly. This article seeks to set out in what circumstances an employee can make a flexible working request and the procedure involved.

Furthermore, the reasons why a request may be refused will be considered.

Eligibility
To eligible to make a flexible working request, an employee must have at least 26 weeks’ continuous service from the date of making a request. They cannot be an agency worker or member of the armed forces and not have made another formal request to work flexibly in the preceding 12 months.

Care
A flexible working request can be made in order to care for a child under 17 (or 18 if the child is disabled). The employee must be the child’s mother, father, adoptive parent, guardian, foster parent who has or is expected to have responsibility for the child’s upbringing. Spouses and civil partners can also make a request.
A flexible working request can also be made to care for an adult who is in need of care and who is the spouse, civil partner or relative of the employee or a person is living at the same address as the employee.

Procedure
An employee has the right to request three distinct things:

1. a change in the hours that they work
2. the time at which they work
3. the location at which they work.

The procedure which needs to be followed is:

1. Written Application

An employee should submit a written application indentifying:

• the change that they are seeking,
• the date on which they wish the change to start,
• their eligibility to make a request,
• that they are making a request under the current legislation,
• the effect the change will have on the employer’s business and how this may be addressed in practice.

2. Meeting

Within 28 days of receiving an employee’s request an employer should meet with the employee to discuss it. An employee has the right to be accompanied to this meeting by a work colleague (not a Trade Union official).

3. Decision

Within 14 days of this initial meeting the employer should confirm in writing its decision, either:

• setting out the new pattern of work and the date on which this will start (if a new pattern of work is agreed this will amount to a contractual variation and will be permanent unless a further variation is agreed); or
• if the request is rejected, this should be confirmed, along with the employee’s right to appeal.

4. Appeal

If the employee decides to appeal against the decision, the employer must meet with the employee again within 14 days to discuss the employee’s appeal and notify the employee of its decision within a further 14 days.

Refusals

The law recognises that an employer may have legitimate business reasons why it cannot accommodate an employee’s flexible working request. Under current law, there are 8 specific grounds for rejecting a request. These are:

• Burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to re-organise 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
• Planned structural changes.
   

Top tips

• Consider all requests fairly, thoroughly and with the business, rather than the employee’s personal circumstances, in mind
• Be positive and try to work with your employees
• If you cannot accommodate their request consider alternatives if possible
• Treat all requests consistently
• Explain reasons for allowing and refusing requests
• Try to respond to requests quickly and certainly within the required time frames
• Keep a note of all conversations.
   

Source Kimbells