Employment News

News added on 09.09.2019

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Flexible working

Do you have to allow flexible working?

According to a survey conducted for the Trades Union Congress (TUC), 30% of flexible working requests are being turned down by employers. The TUC survey of around 2,700 workers also found that 58% of workers believed flexible working was “unavailable” in their place of work. What does the law actually say, and is flexible working something you should seriously consider in your business?

Whilst the legislation provides that all employees who have been employed for 26 continuous weeks or more have the right to request flexible working, and this can be to vary the hours they work, the times they work or their place of work (as between their home and your place of business), you still have the right to turn down the employee’s request on one or more of eight business grounds. You generally have a three-month decision period within which to consider their request, discuss it with them at a meeting and notify them of the outcome. You must also deal with their request “in a reasonable manner”. The eight business grounds for refusal are:

  1. The burden of additional costs.
  2. Detrimental effect on ability to meet customer demand.
  3. Inability to reorganise work among existing staff.
  4. Inability to recruit additional staff.
  5. Detrimental impact on quality.
  6. Detrimental impact on performance.
  7. Insufficiency of work during the periods the employee proposes to work.
  8. Planned structural changes to the business.

When refusing a request, you can cite more than one business ground, but you should also explain your decision, and the reasons for it, fully and clearly.

However, just because you could potentially turn down a request doesn’t mean that you should, as your business can derive many benefits from offering flexible working, such as increased staff motivation, productivity and retention rates, plus fewer business overheads if you have staff working from home. Therefore, consider the employee’s request carefully, weighing up the benefits of the change for the employee and your business against any adverse business impact. Identify any potential issues, together with possible ways to mitigate them. If you can’t accommodate the employee’s proposed working pattern for genuine business reasons, be prepared to investigate alternative ways to meet their flexible working objectives.

Where a new working pattern is agreed, it generally constitutes a permanent change to the employee’s employment contract. However, if you’re unsure whether a flexible working arrangement is sustainable in the business, agree a trial period with the employee. The legislation doesn’t explicitly provide for trial periods but there’s nothing to prevent the employee agreeing to one, e.g. four to eight weeks.

Also be aware that rejecting a flexible working request may give rise to a claim of sex or disability discrimination under the Equality Act 2010. Sex discrimination is particularly relevant when dealing with flexible working requests from female employees who are accommodating childcare arrangements, possibly on their return from maternity leave. It may amount to indirect sex discrimination if you reject their request and you’d then need to objectively justify your actions by showing they were a proportionate means of achieving a legitimate aim. A disabled employee could argue that you’ve failed in your duty to make reasonable adjustments if the change they sought was to avoid a substantial disadvantage in relation to work provisions, criteria or practices or physical workplace features.

Finally, the government is currently consulting on whether employers should be placed under a positive duty to consider if a job can be done flexibly and to make that clear when advertising the role, so it may be that the law on flexible working will change in due course.

You have the statutory right to turn down an employee’s request for flexible working on one or more of eight business grounds, but doing so could leave you at risk of a sex or disability discrimination claim. There are many business benefits that can be derived from offering flexible working to staff, so do consider all requests carefully and, if you can’t accommodate an employee’s proposed working pattern for genuine business reasons, do be prepared to investigate alternative options. You can always start with a flexible working trial period if you’re unsure.

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