30 / 6 / 2014 10.29am
Our legal partners Capsticks, have prepared some FAQs to help employers deal with requests for flexible working.
How often can requests be made?
An employee can only make a request to work flexibly every 12 months.
Are there any time limits?
There are no longer time limits placed on when meetings should be held and when to respond to the employee, but the legislation does set out that the process, including an appeal, must be considered within three months of the receipt of the request.
If an employee fails to attend a meeting to discuss the matter or a rearranged meeting, the employer may consider the request withdrawn.
Can we reject an application?
Yes, an application can be rejected on the same business grounds as the old process.
- The burden of additional costs
- It may be that additional staff will need to be recruited to cover a flexible working arrangement involving reduced hours if full time cover is required. This could entail recruitment costs as a result of advertisement or the use of employment agencies. In looking at cost you should also bear in mind the cost of losing the staff member who has made the request if it is rejected.
- The inability to reorganise work amongst existing staff
- Employers will need to consider whether it is possible to reorganise work within a team or department to accommodate a flexible working request. Capacity of all staff should be considered. ACAS suggests that this matter should be discussed with the team before a final decision is reached.
- An inability to recruit additional staff
- You should ask existing staff if they are prepared to take on additional work and also consider external recruitment. Evidence that it has not been possible to recruit someone to cover the work should be retained.
- A detrimental impact on quality
- Employers may consider that having a reduced workforce in a particular department may have a negative impact on the quality of work. If this ground is to be relied upon, ACAS recommends that employers have thought through whether training could rectify the problem.
- A detrimental impact on performance
- This can mean performance of the individual, the team, or the organisation as a whole. Clearly which of these is relevant will depend on the role of the employee who has applied for flexible working. It may be felt that the absence of the employee from the workplace will have a detrimental impact on the team if they are a manager, or it may be that if a home working request is made, that you feel the employee would just not be capable of performing their role remotely.
- A detrimental effect on ability to meet customer demand
- Whether it is appropriate to rely on this business reason will depend very much on the department within which the employee works. The ACAS guidance suggests that a trial period is used to determine whether concerns on this basis are well founded.
- Insufficient work for the periods the employee proposes to work
- If an employee proposes a change in work hours or times but there is deemed to be insufficient work in the hours proposed, this will be a business ground for refusing the request.
- A planned structural change to the business
- An example would be a merger or department reorganisation or changes to working hours where the employer feels that the flexible work pattern would not fit with the new plans.
- Under the old procedure, employers had to set out in the rejection letter the grounds on which it relied to reject the request and an explanation as to why the grounds applied. This is no longer necessary but employers may wish to consider that an explanation of some sort may go some way to limiting the number of appeals it receives in response to a rejection.
Can the employee appeal?
There is no statutory obligation to allow an appeal but, again, the ACAS code sets out that employers should allow an appeal and that it may be helpful to meet again to discuss this matter further as good practice.
The ACAS guidance also sets out that appeals should be dealt with as quickly as possible and that any appeal should be heard within the three month time limit placed on the new flexible working regime. Again, it is recommended that employees are allowed to be accompanied to an appeal meeting.
Can we insist on a trial period?
If you are unsure whether a flexible working arrangement is suitable, you may wish to consider suggesting a trial period to the employee after which time the arrangement will be reviewed and either rejected or granted.
To avoid any doubt regarding a trial period, the arrangement should be set out in writing and signed by both the employer and employee.
How do we deal with multiple requests?
You may face a scenario where a number of employees in one department make requests to work flexibly. ACAS recommends that the requests should be dealt with in the order in which they are received but, of course, you may receive requests at the same time.
The reasons for the request do not need to be taken into consideration when you are looking into multiple requests and you should instead limit your decision to the role of the employee, the ability to deal with the flexible working request and the impact on the service.
Whilst it is open to you to prioritise requests according to an employee’s personal circumstances, the concern will naturally be that if this is permitted, this could lead to disgruntled employees and even to discrimination claims. For example, if priority is given to requests from those with certain periods of service, age discrimination claims are a risk.
Given the risk of a discrimination claim if a request for flexible working for childcare purposes by a female employee is rejected, it is understandable that managers may seek to give priority to such a request over a male employee who has not applied for childcare reasons. However, we would suggest that employers should be careful not to prioritise female employees so that male employees feel disadvantaged and would caution against adopting a blanket policy regarding prioritisation.
In looking at other options for dealing with multiple requests, the ACAS guide refers to random selection. Alternatively it suggests that employees who already work flexibly are asked if they wish to return to normal working hours as employees’ personal circumstances may have changed and they will want to increase their hours.
What happens to the contract if a request is agreed?
The effect of agreeing to a flexible working request remains the same as under the old regime: a change will lead to a permanent variation to the employee’s terms and conditions of employment regarding which a statement of change will need to be sent to the employee.
We recommend that both the employer and the employee sign a new contract incorporating the change. This should help to manage expectations if an employee wants to amend their work patterns in the future to increase their hours or return to the workplace. As the variation is permanent on granting the request, they would not have the right to return to their old work patterns but could make a request to increase hours subject to the employer’s agreement.