The TUC reported yesterday that one in three flexible working requests are being refused by employers, but what are the risks involved by saying 'no' in these circumstances?
Recent polling conducted on behalf of the TUC found that:
- One in three (30%) requests for flexible working are being turned down.
- Flexi-time is unavailable to over half (58%) of the UK workforce. This number rises to nearly two-thirds (64%) for people in working-class jobs.
- 3 in 10 workers (28%) say their desire for more flexible hours is one of the main reasons they might look for a new job.
Do employees have the right to a flexible working arrangement?
In short, no - employees do not have an automatic right to flexible working. However, all employees with 26 weeks' continuous service have the right to request flexible working which can include part-time hours, compressed hours, flexitime, homeworking, job sharing or any other working arrangement which deviates from the organisation's norm. Employees can only make one request over any 12 month period and employers are obliged to consider the request in a reasonable manner.
However, it may be the case that you cannot accept the flexible working request because (1) the employee is not eligible to make the request (perhaps due to length of service or because they have made a request already within 12 months); or (2) for one or more of the business reasons listed below as prescribed by the legislation:
- 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; or
- planned structural changes.
The law provides that you must notify the employee of your decision within three months of receiving a flexible working request, unless an extension is agreed between both parties. It is important to bear in mind that the three month clock continues to tick during the appeal process, so act promptly.
What if you genuinely cannot accommodate the flexible working request?
Much has been said about the benefits of offering flexible working arrangements to employees. According to the TUC, flexible working boosts staff morale, increases staff retention and productivity. Nevertheless, it will not always be possible to cater to every request made by employees.
Any response to the employee should be set out in writing from a good practice standpoint. It is not necessary to "sufficiently explain" why the business ground applies in the particular set of circumstances. However, it may be helpful to do so to maintain open dialogue between you and your employees - perhaps you can arrange their working pattern in a different way which was not included in the request? It may be beneficial to continue exploring these options with the employee.
Potential risks to employers when handling flexible working requests
An employee could potentially bring a claim to an employment tribunal following refusal of their request. In particular, employers should be mindful of:
- Breaching the statutory requirements - if you fail to deal with the request in a reasonable manner, exceed the time limit for responding (and any agreed extension), refuse the request for a reason other than one listed above, reject the application on the basis of incorrect facts or wrongly treat the request as withdrawn.
- Direct or indirect discrimination - the employee may seek to argue that the request was rejected because of a protected characteristic. For example, an employee seeking adjustments because they have a disability or a female employee seeking to work around child care commitments.
- Constructive dismissal - if the request is poorly handled, an employee may resign and claim constructive dismissal on the basis that the relationship of trust and confidence has been destroyed.
Due to the risks involved, it is good practice to put in place a flexible working policy which outlines to whom requests should be made and methodical guidance on handling requests.
Watch this space
The government is currently consulting on whether to introduce:
- A new duty on large employers (250+ employees) to publish their flexible working policies on their website; and
- A requirement that job adverts must say whether the job is open to flexible working and, if so, what information should be provided in the advert and how the requirement would be enforced.
Separately, the Flexible Working Bill 2017-19 (a Private Members' Bill) is scheduled for its second reading in the House of Commons in due course. If enacted, the Bill will require employers to offer flexible working in employment contracts and to advertise vacancies as suitable for flexible working unless certain conditions are met. We'll keep you updated.
If you have any queries on flexible working requests, then please get in touch with your usual Brodies contact.
Users of Brodies Workbox may also want to take a look at our dedicated pages on flexible working, which include a flexible working policy.