Do I have to offer flexible working?
Do I have to offer flexible working?
By Karen Blexley – MLP Law
As we continue to progress towards an ever more modern working world, there is more and more pressure on employers to consider requests for flexible working hours and with technology, it is harder to justify the traditional 9am-5pm in the office arrangement.
The requests are generally made by employees who want to achieve a better work life balance and who consider working more agile hours the best way to accomplish this. However, employers do not have to grant to a request for flexible working.
Who can apply for flexible working and what can they apply for?
Employees who have been employed for a period of at least 26 weeks have the legal right to request flexible working and can make a request once in every 12-month period (all employees can make a request earlier but they may not have a claim if you don’t consider it). If a request is denied, an employee cannot make the request again until 12 months have passed, as it is likely that the reason for the refusal will still be relevant if another application is made directly after the initial request is denied. Although if the request is due to circumstances such as a disability, religious beliefs or childcare requirements, then you should consider the request again (or consider the request fully regardless of length of service) as there are greater risks to a business if it refuses to grant the flexible working.
In terms of what an employee can apply for, an employee can apply to:
Change the hours they are required to work; change the times they are required to work and change where they are required to work i.e. whether this be from home or the place of business. The request generally tends to be for a permanent change, although they can also request a temporary change.
How can an employee apply for flexible working?
In order for a request to be valid in law, an employee must ensure that the request complies with the following criteria:
– The request must be in writing and explicitly state that it is an application for flexible working;
– The request must specify the change to the current contract that is being applied for and what date the employee proposes that this change comes into effect; and
– The request must explain what effect, if any, the employee thinks making the change applied for could have on their employer and how this effect may be dealt with.
If the application meets the above criteria, then you are under a duty as an employer to consider the application and make a decision about whether or not it is approved.
It is common for employees to follow a more informal process and you may allow this, however it is better to try and follow the formal process as otherwise you might have to deal with the same application twice.
Refusing the application
Although as an employer you can refuse an application for flexible working, this can only be refused on the following eight grounds:
• The burden of additional costs,
• Detrimental effect on ability to meet customer demand,
• Inability to re-organise work among existing staff
• Inability to recruit additional staff,
• Detrimental impact on quality of work,
• Detrimental impact on performance,
• Insufficiency of work during the periods the employee proposes to work, and
• Planned structural changes.
Any other reason for rejecting the application will not be valid and is likely to result in the employee making an appeal.
Avoiding the risks
In order to avoid the risk of an employment claim, is important that as an employer you do properly consider any application for flexible working and ensure that any rejection is genuinely on the basis of one of the above eight grounds. It is also key that you ensure that your reason for the rejection does not target a specific group of people with a protected characteristic and that you are not putting yourself at risk of being accused of discrimination either directly or indirectly.
A vast majority of flexible working requests tend to come from females returning from maternity leave, who require more flexible working to meet childcare demands. As the statistics confirm that females are the primary care provider for children, a refusal to grant an employee’s request for flexible working on these grounds could amount to indirect sex discrimination unless the company can objectively justify its refusal. A refusal in these circumstances is therefore higher risk and would require you to go further than simply relying on the eight grounds set out above.
Other requests could be related to another protected characteristic, for example religious beliefs, in these circumstances you might also be required to objectively justify a refusal so greater consideration is required.
If the request is on the grounds of an employee’s disability, you also have to be mindful of the duty to make reasonable adjustments which could include a flexible working arrangement.
Each application should be considered on a case by case basis to avoid the risks of employment claims.
If you would like further information on dealing with a flexible work request or providing flexibility within the workplace, please contact us at firstname.lastname@example.org