Ask the expert: Flexible working request

Q. ONE of my employees has returned from maternity leave and asked if she can discuss changing her working hours. I am keen to keep my staff happy but also need to ensure our business needs are met. What are my obligations as an employer?

A. Whether it is upon return from maternity leave or simply a request from an employee to work flexibly, this is an area we get phone calls on a very regular basis.

Firstly, before we look at the actual process, what do we mean by flexible working? It is essentially a working pattern that is different from the traditional 9am to 5pm, Monday to Friday. It can take many forms such as part-time working, compressed hours, working shifts and home working.

In our experience at MDDUS we find that, where possible, practices are keen to support their staff with any requests to alter their work pattern.

What does the law say? The Employment Rights Act 1996 and regulations made under it, means that all employees, regardless of caring responsibilities or gender, have a right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly provided they have worked for their employer for 26 weeks continuously at the date the application is made. An employee can only make one application in any 12-month period.

The employee should put the request in writing, setting out:

  • The date of the application, the change to the working pattern they are seeking and when they would like the change to come into effect
  • What effect they think that the requested change may have on the employer and how in their opinion any such effect might be dealt with
  • That this is a statutory request and the date of any previous applications if applicable

If the employee is only looking for an informal change for a short period then compassionate leave or unpaid leave may be considered as opposed to a permanent change via a flexible working request.

Once the application has been received, an employer should arrange to discuss it with the employee as soon as possible, without undue delay. It is important that you have a full and meaningful discussion to ascertain whether you can support it fully, not at all or come to some sort of compromise.

There are eight business reasons that a practice can decline a request but please note an application has to be given full consideration and all avenues looked at. They are:

  1. Burden of any additional costs is unacceptable to the organisation
  2. Inability to reorganise work among existing staff
  3. Inability to recruit additional staff
  4. Employer considers the change will have a detrimental impact on quality
  5. Employer considers the change would have a detrimental effect on the business ability to meet customer demand
  6. Detrimental impact on performance (relating to the individual, team or organisation)
  7. Insufficient work during the periods the employee proposes to work
  8. Planned structural changes and considers the flexible working changes may not fit with these plans

An employee should also be allowed to appeal the decision if there is new information that has come to light or the employee thinks the employer has not handled the request reasonably in line with policy.

It is therefore important that any practice has a flexible working policy in place. For a sample copy of a policy and a handy two page factsheet that covers all the legal side of dealing with flexible working, simply drop us an email on employmentlaw@mddus.com