It’s a quiet Monday morning. You’re at the coffee machine contemplating the busy week ahead when you’re greeted by a panic-stricken employee. She tells you she is struggling to juggle work and childcare – her nanny’s left the country and there’s a long waiting list for the local crèche. She feels her only option is to work part-time for a while (as yet unspecified) until she gets a crèche place – and even then she’ll have to leave at 4pm every day to pick up her child.
You’re sympathetic, of course. But you’re running a tight ship, and this employee’s role is crucial to your organisation. In fact, you’d been planning to ask her to do some overtime, rather than reducing her hours. So what should you do next?
With work/life balance an increasingly hot topic, the concept of ‘flexible working’ is frequently debated – indeed, the Government recently proposed to extend this right to any parents of children under 16. To many businesses’ delight, this looks set to be delayed – but you still need to be up to speed with your current legal obligations.
Currently, any parents whose offspring are under the age of six (or 18 for disabled children), and have been with their employer for at least 26 weeks, have the right to request a change in their working pattern. Seems simple – but this does not equate to an automatic right to work flexibly. Employers are legally obliged to consider requests seriously – but not obliged to grant them.
What is flexible working?
Working flexibly can include varying the hours, times and location of your work/workplace – for example, altering hours to facilitate the school run. More creative solutions may involve job-sharing, homeworking, term-time working or annualised hours.
Like many employment laws, there is a formal procedure to follow, which includes the following steps:
- The employee has to submit a written application;
- Within 28 days, the employer must meet with the employee to discuss the application;
- Within a further 14 days, the employer must provide the employee with a letter outlining its decision - whether the request is approved or not;
- If the request is refused, the employee can appeal and the employer must hold an appeal meeting within 14 days;
- Within 14 days of the appeal meeting, the employer must write to the employee with the outcome of the appeal.
Although this may seem pretty daunting to many employers, particularly small businesses, it is important to bear in mind that an employer is perfectly entitled to refuse the employee's request. The grounds for refusal are numerous and wide-ranging.
When can I refuse?
An employer may conclude the employee’s request is unfeasible because of the burden of additional costs; the detrimental effect on ability to meet customer demand; an inability to re-organise work among existing staff (or recruit additional staff); or the detrimental impact on quality/performance.
A refusal must specify the ground(s) on which the employer is relying, and must contain sufficient explanation as to why the particular ground(s) applies. There is scope for a creative employer to formulate an argument against any such application, should it wish to do so. On the other hand, employers – particularly those seeing a downturn in workload – may be grateful for an employee seeking to reduce their hours and consequently their pay.
While the claims a disgruntled employee can make for refusal of a flexible working application are not particularly intimidating, the real sting for employers is the possibility of allegations of sex discrimination – which attract unlimited awards. As a result, it is essential that careful consideration is given to flexible working requests, that formal procedures are adhered to and that employers can demonstrate they have explored all options thoroughly.
As with all employment issues, businesses must ensure consistency in their approach. And you must keep full and accurate records – they’ll be invaluable in defending the dreaded tribunal claims!
Neisha Glynternick is an employment specialist at Sheridans Solicitors. For further information please contact a member of Sheridans’ Employment Group at www.sheridans.co.uk/services/employment.asp.