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The legalities of flexible working

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Flexible working is increasingly commonplace and most employers will have had experience of employees whose working pattern is atypical, or of employees who have made a request to change their working pattern which they may not have been prepared for, or able to agree to.

With people living and working longer, as well as an increase in the number of working-age people with responsibilities to provide care for elderly relatives, it is likely that more and more people will want working arrangements that are a lot different than the standard 9am-5pm, Monday-Friday.

Employers that are able to take a positive approach and seek to accommodate different working patterns may gain more than just an engaged employee; they may become an employer of choice in a buyer’s market and also gain a wider competitive advantage.

When is a request made in accordance with the statutory regime?

There are a few requirements for a flexible working request to be valid:

The employee needs to have 26 weeks’ service and not have made a flexible working request in the last 12 months

  • Be in writing
  • State that it is a request under the statutory procedure
  • Specify the change the employee wants and when they want it to start
  • Say what impact the employee believes the change will have on the business and how any such effects could be dealt with
  • Say whether the employee has made a previous application for flexible working and if so, when
  • Be dated

I’ve received a valid request. How do I handle it?

The key here is making sure that you handle the request in a reasonable manner. What this means largely depends on whether you think you are going to be able to accommodate the employee’s request or not.  If the request is one that you think you will be able to agree to, then it is open to you to confirm your agreement, agree a date from which the change will take place and then ensure that you document this alongside the employee’s acceptance of it.

This can be done without a meeting with the employee.  However, a meeting is a sensible opportunity to iron out any minor points, such as the date that the new arrangements will apply from and any changes to the employee’s take-home pay that will follow from the change.

In all other cases, either where you might be able to accommodate the employee’s flexible working request but need to explore it, or where you believe that the request is one that you are not going to be able to accommodate, then you must have a meeting with the employee to discuss the request.

I don’t think I can agree to the request, what options are open to me?

If you want to ensure that you are dealing with the request in accordance with the statutory regime – and more importantly if you are wanting to give yourself potential grounds to defend any indirect sex discrimination, or disability discrimination claims that you might otherwise face – it is essential that any reasons for refusal of the request fall into one or more categories set out in the legislation. These are as follows:

  • The burden of additional cost
  • Inability to reorganise work amongst existing staff
  • An inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Detrimental effect on ability to meet customer demand
  • Insufficient work for the periods the employee proposes to work
  • Unplanned structural changes to the business
  • If you are unable to back up your reasons for refusing a request with evidence that will stand up to scrutiny, you are likely to lose any discrimination claim which arises out of a refused flexible working request.

The nature of the evidence that you might need will, of course, depend on the circumstances of each request, but it is likely to include for instance, evidence of you unsuccessfully having tried to recruit other staff to work the days/hours that the employee wishes not to work, or evidence about historic work levels indicating that there would be insufficient work to keep the employee busy when they wish to be working.

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