Do you know the procedure for dealing with requests for flexible working?

Flexible working requests are starting to come through following the changes to the rules in June last year.

As you will recall from our bulletin at the time (!) the rules have been extended so that employees no longer need to show they have caring responsibilities to make a request, and relaxed, so that the procedure you have to go through is less prescribed.

You still have no duty to grant any request.  You only have to consider it.

There is still guidance set out by an ACAS Code. If you follow this, you can be sure that you have dealt with any requests properly, and you can’t be criticised for not considering them.  The main points are these:

Who can make a request?

Any employee with 26 weeks’ service.  Only one request can be made by an employee in any 12 month period.

What can an employee request?

There are all sorts of flexible working arrangements which an employee can request, which fall into three main categories:

• Change to hours:  reduced hours, part-time working, job-sharing, term-time only working,
• Change to times:  Compressed hours, annualised hours, staggered hours, flexi-time
• Change to place:  Homeworking, other premises

There are as many others as your employees can think of, but you get the idea.

How must the request be made?

1. In writing
2. Dated
3. State that it is made under the statutory procedure
4. Specify the change sought and the desired commencement date
5. Explain what effect the change would have on the employer and how any adverse effects of the change could be dealt with
6. State whether the employee has previously made an application to the employer, and if so, when

How must the employer respond?

The employer must deal with the request in a reasonable manner, and must notify the employee of its decision within the decision period.

Deal with in a reasonable manner

This basically means have a meeting with the employee to discuss the request.  Remember to make sure the employee is aware of the knock-on effects of the change (change to salary, pension, etc).  There is no reason not to allow the employee to be accompanied by a colleague at the meeting.  Conduct the meeting in a private place (ideally the office).

The decision period

The decision should be made within three months of the request being made, or longer if the parties agree.

Grounds for refusing a request

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise 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
• Planned structural changes

Granting a request

There are no statutory rules regarding what you do if you grant a change, but our advice is

• Make the change subject to a trial period
• Make the change subject to regular review
• Reserve the right to reverse the change at the end of the trial period, and at the regular review intervals

Refusing a request

You should give your decision in writing with the three month period.

You do not have to give an explanation of why you think particular grounds for refusal apply, but it may be helpful to show that you have considered the request properly if you do this. You should allow the employee the right of appeal against your decision.

Some employees may complain of discrimination if their requests are not granted.  So far, women have been the main group to have done this successfully.  For this reason it is sensible to show your objective justification for refusing any application, even though for the purposes of the legislation you aren’t strictly required to.  This means trying to take a positive approach to requests, and explaining why you think the grounds for refusal still apply.

For more information contact Katy Morgan Smith or Lianne Payne, our Head of Employment, on 024 7623 1000

Askews Legal LLP – Solicitors in Coventry.