As workplaces make post pandemic plans, it’s a great time to review your overall workplace rules. Can you introduce permanent flexible working with employees able to work a combination from the workplace or elsewhere, e.g., home? Or maybe you can be more flexible with hours worked, perhaps a 4 day working week.
The pandemic has led to a time of reflection, with employees considering their working patterns and base of work. Flexible working requests are on the increase and it’s essential, employers have a policy with a clear process in place, in line with employment law.
What is a flexible working request?
A flexible working request is any request by an employee to change their working pattern, including a change of location (for example, working from home), a different start or end time, or moving from full-time to part-time. It’s a right to request, not an automatic right for approval. While in some cases employers may be happy to vary their employees’ working patterns, some may be wondering if they have to accept each employee’s flexible working request.
Reasons for refusing a statutory flexible working request
Under the Employment Rights Act 1996, employees with at least 26 weeks’ continuous service have the right to make a flexible working request. The Act also states eight business reasons for which employers may refuse such requests. These are:
the 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; and
planned structural changes.
If you deny a flexible working request, you must be able to justify it using at least one of the above reasons. It is worth noting, there is a campaign to make the right to request flexible working a right from day 1 of employment.
What claim could an employee bring if I refuse a flexible working request?
An employee may be able to file a tribunal claim where you have refused their flexible working request without following a proper procedure. Under the Employment Rights Act, your employees may bring a claim if you:
fail to deal with their application in a reasonable manner;
fail to notify them of the decision within the decision period (three months beginning from the day the employee made their application);
rejected their application for a reason other than the statutory reasons listed above;
based your decision on incorrect facts; or
treated the application as withdrawn when not entitled to do so.
If a claim is brought on one of these grounds, the tribunal cannot question the business rationale for your decision or substitute its own decision. The role of the tribunal in this situation is to consider the facts and decide whether you followed a proper procedure and seriously considered the application.
If a tribunal finds that you have not followed the correct procedure or the decision was not based on correct facts, it may order you to reconsider the request and may also award the employee up to eight weeks’ pay as compensation.
What discrimination claims could arise from refusing a flexible working request?
Employees who possess a protected characteristic may be able to bring a discrimination claim if their request for flexible working is refused. For example, refusing a disabled employee’s flexible working request may be a failure to make reasonable adjustments, and rejecting an employee’s request not to work certain days may be indirect religious discrimination if they made their request so that they could observe religious requirements.
Women who make a flexible working request in order to care for their children may be able to claim indirect sex discrimination if their request is refused.
What should I do if I want to refuse an employee’s flexible working request?
You have a statutory duty to deal with an application for flexible working in a reasonable manner. You can include a flexible working request form in your process, this helps employees to give their reason for the request and helps you as employer to make a reasonable decision.
Hold a meeting with the employee to discuss the request and any possible alternatives. Allowing a trial period of any proposed arrangements can also help both parties assess whether the new arrangement will work, or provide evidence to help you justify your refusal if the flexible working arrangements are shown to be unsuitable.
If you do decide to fully reject the request, ensure you can identify at least one of the statutory reasons listed in the Employment Rights Act and if the employee has a protected characteristic ensure you can objectively justify your refusal as a proportionate way to meet a legitimate aim.
What should I do if I approve a flexible working request?
It’s great if you can support a flexible working request, either in full or by means of an adjustment. You should follow this up with an addendum to contract letter which supersedes the original contract of employment.
If you can introduce a more flexible way of working for everyone, this can reduce the amount of flexible working requests received. For further support with a flexible working request, use the contact us form on this website.