Dealing with flexible working requests
In August 2021, an Employment Tribunal awarded a Claimant nearly £185,000 as compensation for indirect sex discrimination after the Claimant's flexible working request on her return from maternity leave was refused without proper consideration. Given the potential repercussions for employers in getting this wrong, we set out our top 10 tips for how to deal with a flexible working request:
1. Check the employee meets the qualifying criteria
In order to make a statutory request for flexible working under the Employment Rights Act 1996, the following eligibility criteria apply:
- a request can only be made by an employee;
- the employee must have 26 weeks' continuous employment at the date the request is made; and
- only one request may be made under the statutory scheme in any 12-month period.
2. Ensure the request meets the statutory requirements
An employee's application must:
- Be in writing and dated.
- State that it is an application made under the statutory procedure.
- Specify the change that the employee is seeking and when they wish the change to take effect.
- Explain what effect the employee thinks the change would have on the employer and how this could be dealt with.
- State whether a previous flexible working request has been made.
3. Deal with the request in a reasonable manner
Employers must deal with flexible working requests in a reasonable manner, including discussing the request with the employee promptly and allowing the employee to be accompanied to any meeting.
Employers should consider requests carefully, looking at the benefits of the requested changes for the employee business and weighing these against any adverse business impact.
The ACAS Code of Practice on flexible working requests suggests that an employer may want to use a trial period where it is unsure about the long-term effects of the arrangements requested.
Offering the employee the right of an appeal, whilst not strictly required, may also be seen as a reasonable course of conduct.
4. Know the time limits involved
An employer must notify the employee of its decision as soon as possible, and within three months of the date, the request is received. The decision of any appeal must also be within three months of the original request.
5. Agree any contractual variations in writing
If the request is accepted, this will be a contractual variation to the employee's employment. The employer should issue a written statement of changes to the employee's terms and conditions within one month of the changes taking effect.
It is recommended that an employer issues a new contract setting out the terms agreed. The new terms should then be signed by the parties.
6. Only refuse a request on specific grounds
Requests may only be refused for specific business reasons and must not be refused for discriminatory reasons. An employer may only refuse a request if one or more of the following grounds applies:
- The request does not meet the necessary requirements.
- There is a burden of additional costs.
- There will be a detrimental effect on the ability to meet customer demand, quality or performance.
- The employer is unable to re-organise work among existing staff or recruit additional staff.
- There is insufficient work during the periods the employee proposes to work.
- The employer is planning structural changes which impact the request.
7. Have a written procedure
Employers should have written procedures in place to ensure that employees are aware of the requirements to make a request and the potential reasons why a request could be rejected.
8. Be aware of the consequences for failing to deal with a flexible working request
If an employer fails to reasonably deal with a flexible working request, an employee may make a claim in the Employment Tribunal. The Tribunal may award compensation of such amount as the Tribunal considers just and equitable, up to a maximum of £4,352.
It will also be automatically unfair to dismiss an employee because they have made or propose to make a flexible working request, and there is no qualifying service necessary to bring this claim.
In Thompson v Scancrown Limited the refusal of the flexible working request was also indirectly discriminatory to the Claimant on the basis of sex due to her childcare requirements.
9. Keep up to date
In September 2021, the Government announced proposals to allow employees to make flexible working requests from day one rather than after 26 weeks of employment.
10. Seek legal advice
Here to help
If you require further information and assistance on flexible working requests or policies, you can reach our Employment Team on 0161 941 4000.