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The trade unions recently hit the headlines for calling on employers to use technology to allow their staff to work fewer working hours whilst also keeping the same pay.

However, in reality, legislation has already been in place for a number of years which allows employees to apply for a change in their working hours/arrangements.  This is in the form of the right to request flexible working.  In essence, this allows employees with at least 26 weeks’ continuous employment to make a request for flexible working under the relevant statutory scheme for any reason.  In addition, the employee has the right to complain to an Employment Tribunal if their employer fails to deal with such an application in a reasonable manner; fails to notify them of the decision on their application within the decision period; fails to rely on one of the statutory grounds when refusing their application; bases its decision on incorrect facts or treats the application as withdrawn when the grounds entitling the employer to do so, do not apply.

As already advocated by the unions this week, this statutory scheme allows eligible employees to request a change to their employment terms and this could include a change relating to the hours they work; the times when they are required to work and/or the place of work.  It also includes such applications for annualised hours; compressed hours; flexi time; home working; job sharing; self rostering; shift working; staggered hours and term time working, among others.  So in reality there are actually very few limits as to what an employee could request by way of variation by way of of flexible working.

From an employer’s perspective, it is necessary to deal with any such flexible work request which is received under the relevant statutory scheme, to deal with it in a reasonable manner and also notify the employee of its decision within the “decision period”.  An employer can only refuse a flexible working request on one of the following grounds:-

  1. The burden of additional costs;
  2. detrimental effect on the ability to meet customer demand;
  3. inability to reorganise work amongst 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 or;
  8. planned structural changes.

Furthermore, ACAS have published an accompanying code which suggests that employers should consider requests carefully, looking at the benefits of the requested changes for the employee and their own business and weigh these up against any adverse business impact of implementing these changes.  Having done so and weighed up the advantages, possible costs and potential logistical implications of granting the request, an employer should let the employee have their decision in writing as soon as possible.

As mentioned, there are specific prescribed reasons which allow an employer to refuse a flexible working request.  Again, the accompanying ACAS Code suggests that the employer’s consideration of requests should be objective.  In addition, employers should consider whether an explanation would be both beneficial to the employee and support its decision, particularly in the event that the employee wishes to appeal.

In order to help deal with such requests, it is recommended by way of best practice, and by way of the ACAS Code and also by way of minimising any potential claims in the Employment Tribunal, to implement a flexible working policy.  Employers who are able to accommodate flexible working requests have generally reported favourable results in terms of staff retention and morale.  Inevitably, this approach is likely to be easier to accommodate for larger employers with flexible staffing requirements.  It is inevitably smaller employers, which constitute a significant proportion of UK employers and those with highly specialised work forces face more of a challenge in seeking to accommodate requests to work flexibly.

Furthermore, and in addition to the benefits in terms of generating positive industrial relations, an employer must also remain mindful of the potential risks of claims that can be brought by an individual when their requests for flexible working are dealt with incorrectly and/or and in contravention of the law.   In terms of the remedies this includes making a declaration of an award of compensation to be paid by an employer to the employee up to a maximum of eight weeks pay (as subject to the statutory cap).

In addition, an employee may also consider bringing claims and based on their own childcare commitments, religious requirements or because they are seeking adjustments by reason of a disability.  In many cases female employees whose requests for flexible working have been rejected, will often seek redress by making a sex discrimination claim, and many claims in relation to a breach of the statutory rights to request flexible working have been accompanied by claims for either direct or indirect sex discrimination.  Therefore, an employer should be particularly mindful in terms of dealing with requests from employees who are either about to go on, or about to return from, maternity leave.

For a flexible working policy which is suitable for all types and sizes of businesses, please contact a member of the Mincoffs Employment Team who will be able to assist in preparing and drafting a suitable policy. If you require any further assistance in relation to this particular matter, please contact either Nick Smith (nsmith@mincoffs.co.uk – 0191 2127739) or Robyn Aisbitt (raisbitt@mincoffs.co.uk – 0191 2127717).

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