A recent survey revealed that nearly one in five working mothers have been forced to leave their jobs because their flexible working request has been rejected. The Workingmums Annual Survey 2016 found that more than 25% of women in work had a flexible working request rejected, and 12% felt that their employer did not even consider their request. But how should these flexible working requests be handled, and how do you make sure you don’t fall foul of the law?
What are employees entitled to?
Employees don’t have the right to work flexibly, but they do have the right to make a request to do so provided that they:
• are an employee (not a worker);
• have at least 26 weeks’ service; and
• have not made a flexible working request in the previous 12 months.
The request should be written and dated, and should state that it is a request for flexible working made under the statutory procedure. The employee will need to explain what changes they are seeking and from when (changes can relate to hours, times or place of work), what effects the changes might have and how the effects could be dealt with.
Employers must deal with the request within three months (unless mutually agreed otherwise) and in a "reasonable manner". What constitutes ‘reasonable’ isn’t defined in law, but ACAS guidance recommends that an employer should hold a meeting with the employee to discuss the request, offer them the right to be accompanied, and allow them the opportunity to appeal any decision to reject the request.
Rejection must be on the grounds of one or more specified business reasons, which should be confirmed in writing to the employee. The specified reasons are:
1. the burden of additional costs;
2. inability to meet client/customer demand;
3. inability to reorganise work among other employees;
4. inability to recruit additional employees;
5. detrimental effect on quality;
6. detrimental effect on performance;
7. insufficient work when the requesting employee proses to work; and
8. planned structural changes.
The cost of getting it wrong
An employee may bring a Tribunal claim in respect of a rejected request. However, the Tribunal’s role is not to question the business reasons behind the rejection, but simply to ascertain whether:
• the correct procedure was followed;
• the request was taken seriously;
• the decision was based on correct facts; and
• the reasons given were within the ones permitted under legislation.
If the employer is found to be at fault, the Tribunal can order reconsideration of the decision and can award up to eight weeks’ pay (capped, currently, at £479 per week).
The bigger risk in failing to deal properly with a flexible working request is that it could be held to be unlawful discrimination, in which case potential compensation is uncapped.
In particular, rejecting a flexible working request from a female employee might lead to a complaint of indirect sex discrimination. This is on the grounds that the rejection of a flexible working request disproportionately impacts women (as they’re more likely than men to have childcare responsibilities).
To defeat such a claim an employer needs to show its decision was objectively justified, which in essence means they must have fairly rejected the request after due consideration. Unlike claims under the flexible working legislation, tribunals will examine the commercial rationale behind the decision in detail, and it is crucial that it stands up to scrutiny.
Top tips for dealing with flexible working requests
1. Implement a flexible working policy. This will ensure that employees know what information they need to provide and that requests are dealt with consistently and fairly;
2. Give the request due consideration, and ensure that any business reasons for rejection are backed up by evidence and not simply based on assumptions;
3. Don’t be afraid to suggest an alternative arrangement as a compromise;
4. Consider a trial period. Often no-one knows how a flexible working arrangement will actually work in practice, and a trial period gives both parties the opportunity properly to assess the arrangements.
5. Ensure any arrangements (particularly a trial period) are properly documented.
Flexible working is increasingly becoming a feature of working life, and can assist employers in attracting and retaining talented candidates and staff. However, an often unjustified fear of changing the status quo, creating a precedent and potentially losing control of employees can hamper employers from embracing the benefits that flexible working can offer for their workforce and, ultimately, their business.
Keely Rushmore is senior associate in the employment team at SA Law
Image source: Dollen/Flickr