Flexible working requests: common employer pitfalls

imageBROKER/REX/Shutterstock.
imageBROKER/REX/Shutterstock.

More than a quarter of women polled in a recent survey by Workingmums had their flexible working request turned down, and nearly one in five has had to leave her job because her request was refused. Bar Huberman outlines nine common flexible working request pitfalls for employers.

This research, combined with a surge of newsworthy employment tribunal cases involving flexible working requests, shows just how important it is for employers to handle appropriately requests to work flexibly. But where do they tend to fall down?

1. Failure to hold a flexible working meeting

Employers are required to deal with flexible working requests in a “reasonable manner”.

Although this allows for flexibility in the approach to handling requests, the employer should always hold a meeting with the employee to discuss the request, unless it approves it outright.

This will ensure compliance with the “Acas code of practice on handling in a reasonable manner requests to work flexibly”, which should be used as guidance when considering flexible working requests.

The code states that the employer should arrange to talk to the employee as soon as possible after receiving his or her written application.

A meeting will give the employee an opportunity to explain the request, including the impact that the suggested pattern of work would have on his or her employment.

It will give the parties an opportunity to consider together how they might deal with any practical implications.

2. Not allowing flexible working appeals

The Acas flexible working code, which employment tribunals should take into account when considering relevant cases, states that employers should allow employees to appeal a decision to refuse a request.

An employee who is given the opportunity to appeal is more likely to feel that the organisation has given full consideration to their request.

From the organisation’s perspective, another pair of eyes can help to ensure that the employer is doing the right thing.

3. Not considering the business benefits of flexible working

Some, but not all, organisations have caught on to the fact that flexible working can bring business benefits, as well as benefits to the employee.

Many employers cite increased levels of morale among employees who work flexibly, and employees who work according to a pattern that suits their needs are less likely to experience stress.

Having these and other benefits in mind can help managers to be open minded about flexible working requests.

4. Lack of knowledge around flexible working and how to deal with requests

Flexible working requests: process for employers

Respond to flexible working requests Use this workflow to ensure that you comply with the law on the right to request flexible working.

It is important for organisations to have a policy on dealing with flexible working requests.

Often, line managers will receive and handle flexible working requests, so providing training on the process for dealing with requests is crucial.

This should include training on appropriate behaviour during flexible working request meetings, and on how to overcome the potential challenges of managing flexible workers. Often, managers will assume that a suggested pattern of work is unworkable.

Training line managers on the reasons why flexible working can be beneficial for employees and the organisation can help them to buy into it as a concept.

5. Failure to share good practice on flexible working

Line managers and employees are more likely to appreciate the fact that flexible working can be made to work in practice if HR shares examples of flexible working throughout the organisation.

Sharing instances of flexible working among senior management can help to eliminate assumptions around the unsuitability of flexible working in senior roles.

HR could launch a flexible working drive within the organisation. It could kick this off by asking a senior member of staff who works flexibly to talk about how he or she makes it work in practice.

6. Not implementing a trial period

When faced with a flexible working request, managers may simply not know if the suggested pattern of work will be suitable. Putting in place a trial period can be a great way to test the waters.

A trial period will allow the employer to see if there are any issues for the employer or the employee, and if they can work out a way around any challenges that arise.

It is important for the employer to document the trial period.

7. Failure to adhere to the statutory time frame

The employer must give the employee its decision on his or her flexible working application within three months of the written request.

However, the parties can agree a longer time frame, for example to test out the proposed arrangement via a trial period.

If an extension to the three-month period is put in place, both parties should agree to it, and it should be documented.

Flexible working requests: model documents

A full list of our model documents on the right to request flexible working in the order in which they would normally be used.

8. Discriminating against the employee

The requirement for an employee to work full time could amount to indirect sex discrimination.

It has long been accepted by employment tribunals that more women than men have the main responsibility for childcare.

A requirement for full-time working is deemed to put female employees at a disadvantage as compared to male employees.

Employers can justify indirect sex discrimination, but they need to have a good business reason. Therefore, an employer should give full consideration to the employee’s request, including its impact on the organisation.

9. Not dealing with flexible working requests from ineligible employees

Employers should not ignore requests from an employee who does not qualify for the right to request flexible working because he or she does not have the required 26 weeks’ service.

While the employee may not be able to claim a breach of the right to request flexible working, he or she may still be able to bring a claim for sex discrimination or a failure to make reasonable adjustments if he or she has a disability.

Further, refusing even to consider a request could have a negative impact on employee morale.

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