A WIDESPREAD myth seems to persist among employees in regard to 'flexible working' – namely that "if I need to change my hours to suit my domestic commitments, my employer needs to accommodate me – on pain of a complaint to the Employment Tribunal, if they refuse".
And the mythology is not limited to employees. Many employers feel under great pressure to accommodate changes to working arrangements asked for by staff – fearing that refusal will find them in court, even when the demands are wholly unreasonable or impractical.
While enabling staff to find a 'work-life balance' can be an important element of successful people management (and, indeed, may make the difference between retaining a valued member of staff and losing them to another employer), the needs of the practice must also be considered in such cases. The law is of some assistance to both employers and their employees in this regard – but not without some caveats.
The fundamental principle is that employees have the right to request (not demand) flexible working for certain (limited) purposes and their employer has a duty to consider these requests in good faith and without discrimination in their decisions.
Many employers choose to go beyond their statutory duty in response to staff requests, but it is important to understand what the law actually says here.
If a request is made in writing from an employee, who has at least 26 weeks’ service, stating that they wish to vary their contractual hours or working arrangements permanently in order to care either for a child or dependant adult, then the employer must meet promptly with the staff member to discuss their request.
Employees have the statutory right to ask if they:
- have or expect to have parental responsibility of a child aged 16 or under or a disabled child under 18
- are the parent/guardian/special guardian/foster parent/private foster carer or the spouse, partner or civil partner of one of these and are applying to care for the child
- are a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or who, although not related to them, lives at the same address as them.
The employer must seriously consider any application made, and only reject it if there are good business reasons for doing so. It is worth noting that, no matter how outrageous the request might be, the employer will risk a complaint to the Employment Tribunal if the request is not considered in strict accordance with the law – even if it is eventually rejected.
The written application should be made well in advance of when the employee wants it to take effect. It must state that the application is made under the statutory right to request a flexible working pattern and give details of the flexible working pattern they are applying for, including the date from which they want it to start.
Importantly, the employee is required to explain what effect they believe the new working pattern would have on their employer and how any such effects might be dealt with. Finally, an employee who has made such a formal request must wait 12 months before presenting another request.
If the request complies with the above conditions, the employer should arrange a meeting with the employee within 28 days of receiving their valid application. If it is difficult to arrange a meeting within this period, seek the employee's agreement to extend it.
Failure to hold a meeting within the 28-day period or any extension, without the employee's agreement, will be a breach of the procedure. The employee has the right to be accompanied by a work colleague or certified trade union representative at the meeting. You must notify an employee of your decision within 14 days of this meeting.
As we said above, good business reasons can be advanced by the employer for rejecting a request. These are defined in the legislation as follows:
- planned structural changes
- the burden of additional costs
- a detrimental impact on quality
- the inability to recruit additional staff
- a detrimental impact on performance
- the inability to reorganise work among existing staff
- a detrimental effect on ability to meet customer demand
- lack of work during the periods the employee proposes to work.
In the event of a refusal of a flexible working request, you must explain in writing why the grounds for refusal apply in your particular circumstances.
If a staff member understands why a business reason is relevant, they are more likely to accept the outcome and be satisfied that you have considered their application seriously – even if it isn't the outcome they wanted. An appeal against the decision must be allowed and heard by someone other than the original person who decided the matter.
Clearly, the ideal situation is one in which flexible working arrangements are discussed in a spirit of compromise and good faith on both sides. However, there is no right to demand flexible working in any circumstances and staff need to grasp this before starting the discussion process.
Ian Watson, Law At Work
Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit http://www.lawatwork.co.uk/