Legal Q&A: Flexible working requests

With the school summer holidays fast approaching, where do employers stand regarding flexible working applications from parent and guardian employees?

Q Does the statutory right to request flexible working apply in respect of all children?

A No. The right only applies for children under the age of six, or 18 if a disability living allowance is payable for the child.

Q What flexible working time changes can the employee request?

A Eligible employees may only request changes in the hours, times and location of work, which will enable the employee to care for the child. Changes are intended to be permanent, unless otherwise agreed. The legislation does not provide for any trial period but employers can, and often do, agree an informal trial period.

Q How must we respond to a request?

A The statutory procedure involves a written application from the employee, a meeting and a right to appeal, with time limits for both employer and employee in relation to each step. Employers who receive a formal request after refusing an informal request should be aware of the case of Commotion v Rutty, where the Employment Appeal Tribunal found that a formal request amounted to a grievance, triggering the statutory grievance procedure.

Q On what grounds can a request be refused?

A It is sensible to ask (but not demand) that the employee outlines what their caring responsibilities entail when making the formal request. This will help you to understand the request and reach a compromise with the employee if their request cannot be met.

A statutory request can only be turned down for certain good business reasons: the burden of additional costs detrimental effect on customers inability to reorganise the work among existing staff detrimental effect on quality or on performance lack of work for the employee to do during the periods when the employee wishes to work flexibly or planned structural changes.

Make sure you consider whether any of these grounds really do present an obstacle to agreeing to the employee’s request.

Q What remedies may an employee have where a flexible working request is refused?

A The employee may bring a claim before an employment tribunal that the employer has failed to deal with the request properly. The tribunal can examine whether the decision was based on incorrect facts and whether any grounds for a refusal existed, but not its fairness or reasonableness.

It would, therefore, consider whether the proposed flexible working arrangement could have been coped with without disruption and what other staff felt about it (see Commotion).

The tribunal may order the employer to reconsider and award compensation of up to eight weeks’ pay, but it cannot order the employer to give effect to the employee’s request. Additionally, the employee is protected against detriment and dismissal on the ground that they exercised – or sought to exercise – the right to apply for or to enforce the right to request flexible working.

Q Are we at risk of discrimination claims if we refuse?

A A refusal to allow flexible working may put you at risk. London Underground v Edwards (No 2) opened the way for women to bring claims for sex discrimination arising out of the particular disadvantage to which working mothers are subject compared with male colleagues because of their childcare responsibilities. To avoid the risk of indirect sex discrimination claims, employers must show that the refusal is objectively justified. In Giles v Geach, the employer failed to show that the requirement to work full time in the office was objectively justified, particularly because the employer had not complained when the employee worked from home in the past.

Q How should employers approach flexible working requests?

A Any formal request for flexible working by an eligible employee should be carefully considered, and reasons for refusal clearly explained. Have a policy setting out clearly defined business reasons for refusing a request to ensure consistency in approach between line managers.

Explain differences of approach where the circumstances of flexible working requests are or appear to be similar. Be wary of refusing on the basis of minor procedural errors by employees where there are no substantive business reasons for refusing.

Put forward alternative proposals: the answer does not have to be just yes or no. Ensure that managers understand the employer’s obligations with regard to these requests. Any new terms should be recorded in writing, and preferably signed by both parties.

By Laurence Rees, partner, Reed Smith Richards Butler

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