The right to request flexible working has been a fact of employment law for over 2 years now. According to a recent survey conducted by the CBI, 90% of all requests are accepted by employers. However, it also revealed that over 60% of respondents believed that dealing with requests took up a significant amount of management time.
Flexible working is seen as the way to achieve the fabled work/life balance, allowing employers to boost retention rates, whilst lowering absenteeism and helping them to attract likeminded customers and potential employees.
While the current legislation is only applicable to working parents with children under 6 or disabled children under 18, last week the Government published draft regulations that will extend the right to include people with care responsibilities for elderly or sick adults.
General considerations
- Do properly consider all requests. It will not be appropriate for every request for flexible working to be granted. However, a knee jerk rejection to all applications could leave you vulnerable if the employee subsequently brings a claim. An employer must have a clear business reason for refusing an application.
- Once you receive a request diarise the critical dates. Once an application has been made you must meet with the employee within 28 days to discuss their proposals, unless you approve the application within that period. Following the meeting you will have 14 days to give a written decision.
- Consider having a flexible working policy that applies to all employees. Employees who do not fall within the statutory criteria can still make applications. However, these do not need to be considered under the statutory procedure. An employee in this situation, whose application is dismissed without consideration or for discriminatory reasons, could argue that the employer has breached its general duty of trust and confidence towards them. An express policy could provide clarification.
If you plan to accept
- Do specify a trial period with a review scheduled at the end of it. Once a flexible working arrangement has been agreed and confirmed it constitutes a binding and permanent change to the employee’s contract. Usually a six month period will be adequate to assess whether the current arrangements are viable or not. Ensure that you are in the position to either modify the terms or withdraw the arrangement altogether if it is not working out.
- Do consider all the surrounding issues. For example, if an employee’s proposal involves them working from home issues such as, health & safety, insurance and security of confidential information will need to be addressed. Also think about practical issues like how you will manage the employee and assess their performance.
If you plan to reject
- Be clear about the business grounds you are using to support a refusal and have evidence to support them. Blanket assertions will not be enough. Employers are entitled to reject an application for business reasons. However, the tribunals have indicated that an employer raising a justification post rejection will face a far higher burden in showing that the objection was reasonable. Make sure that all the bases are covered from day one.
- The greatest danger in refusing requests for flexible working lies in potential claims for sex discrimination. Indirect sex discrimination occurs where a provision, criterion or practice in the workplace has a disproportionate effect on a particular group because fewer of the members of that group are able to comply with it. It has been judicially accepted that women are more likely to have childcare responsibilities, and it follows that they are therefore likely to have increased difficulties with working full time. However, indirect discrimination can be justified if it can be shown that it was based on a legitimate reason. The best approach is to be fully aware of the risks and make sure if you are planning on rejecting an application, that you have thoroughly thought through and justified all the reasons for doing so.
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