What to do if an Employee submits a Flexible Working Request

Year Published: 2019

Employers most importantly need to be aware of the statutory framework that governs the flexible working process. Flexible working requests are often not dealt with properly by employers who are unaware of these obligations.

Flexible working indeed can promote a happier, dedicated and more productive workforce and therefore has benefits for both employees and employers alike.

However, as with many things, there could be a downside to allowing your employees to work flexibly. If you are inconsistent in your approach, there could be bitterness amongst staff who have had their requests denied, whilst others have been accepted.  For those who work away from the office regularly, a lack of contact with colleagues at the workplace could limit the cohesiveness of teams and may lead to breakdowns in communication.

Due to the rise of flexible working in the workplace, it is now commonly seen as an advantage for employees and shows a progressive employer that listens to the needs of its staff. It could also assist with recruitment and retention.

Who can apply to work flexibly?

All employees who have worked continuously for their employer for at least 26 weeks may apply to work flexibly, however they can only request to do so once in any 12-month period.

An employee’s application must:

  • 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, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
  • State whether the employee has previously made an application to the employer and, if so, when.
  • Be in writing.
  • Be dated.

What should an employer do with a flexible working request?

You should deal with an employee’s flexible working request in a timely manner and within 3 months from receiving the initial request. You should also assess any advantages or disadvantages of such applications and arrange a meeting with the individual to discuss the request in more detail – making sure you allow the employee to be accompanied during this meeting. You should also give the employee the right to appeal any decision.

Crucially, the initial decision and the appeal must be dealt with during the 3 months, unless an extension has been agreed.

Flexible workingConsider the impact of the changes

In discussing the employee’s request, the employer should ensure that the employee is fully aware of the impact of the change on their terms of employment, in particular if the change might result in a reduction in salary, bonus or pension entitlement. If the changes would have an impact on the employee’s benefits (such as their pension) it may be appropriate to suggest that the employee seeks advice on the impact of the changes from the appropriate benefit provider.

Consider the day-to-day issues

The employer should also take account of operational and day-to-day issues. For example, if an employee is going to work from home, will their manager need them to attend the office for meetings? It may be appropriate to include new contractual provisions to address these issues and avoid future confusion, for example by incorporating a right to request attendance at the employer’s premises on regular set days or by providing reasonable notice.

Approving a Flexible Working Request

As an employer, if you wish to approve a request then you should simply write to the individual outlining all agreed changes and when they are due to take effect.

Rejecting a Flexible Working Request

There is a fair amount of scope to reject a request for flexible working, in instances where one or more of the following eight business reasons apply:

  • The burden of any additional costs is unacceptable to the business.
  • Existing staff are unable to reorganise the work.
  • There is an inability to recruit additional staff.
  • The employer considers the change will have a detrimental impact on quality of work.
  • Detrimental impact on performance.
  • If the change would have a detrimental effect on the business’ ability to meet customer demand.
  • There is insufficient work during the periods the employee proposes to work.
  • Planned structural changes, for example, where the employer intends to reorganise or change the business and considers the flexible working changes may not fit with these plans.

Final Points to Consider

If there are genuine business reasons why flexible working is not feasible, make sure these are properly evidenced and documented and not just based on the personal preference of managers. Note that an argument that ‘we already have too many people who work part-time/from home’ etc. is not one of the permitted grounds for refusing a request.

If you are unsure about how the new arrangements would work, consider whether a trial period could be offered to settle any concerns about the requested working pattern. Even if you can’t offer the exact changes requested, think creatively and see if you can suggest a compromise.

Bear in mind the risk of discrimination at all stages of the process and properly consider all of the employee’s circumstances – as their request could amount to a reasonable adjustment in relation to a disability. It is always recommended that you obtain advice at an early stage in relation to flexible working requests to avoid any costly pitfalls.

For further advice on flexible working requests contact Charlie Wood in SAS Daniels’ Employment Law and HR team on 01244 305 900 or email [email protected].

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