The People Bulletin

Since the right to request flexible working was introduced in 2002, the eligibility criteria have been considerably expanded to cover carers of adults and, with effect from 6 April 2009, those with children under 17 (or under 18 if disabled). Many employers, particularly those with relatively few employees and increasingly limited resources, feel that the increased protection and rights afforded to individuals is too much of a burden for their business. The recent proposals of the Equality and Human Rights Commission to extend the right to request flexible working to all employees, regardless of their caring responsibilities, will have further increased employers’ concerns.

Can employers refuse flexible working requests?

However, whilst the legislation undoubtedly places an administrative burden on employers, they should always remember that no employee has the right to work flexibly. The right is simply to request a flexible working pattern. An employer whose business genuinely cannot cope with the burden of flexible working should be able legitimately to refuse a request. Whilst the law is necessarily a blunt instrument, an employer, by applying careful thought to each request and genuinely considering the effects of such a request on his business, will be able to refuse requests to work flexibly if necessary.

In order to make a request for flexible working an employee must satisfy various eligibility criteria, including the statutory definition of someone entitled to apply for a flexible working pattern, which is essentially that they are a parent or alternatively someone with responsibility for caring for an adult.

Procedure for flexible working request

The changes that an employee can request are limited to changes to their working hours, times or location. A set procedure should be followed in all cases, as follows:

• Submission of a written application from the employee setting out the work pattern they are requesting;
• A meeting between employer and employee within 28 days of receipt of the request;
• A written decision from the employer within 14 days of the meeting;
• The right of the employee to appeal within 14 days, with a further meeting and final decision to follow.

It is essential that employers base any refusal of a request on one or more of the reasons set out in the legislation. The key reasons are set out below and employers should consider carefully whether each reason could apply in each situation.

• Rejection on the grounds of eligibility or procedure.
• The burden of additional costs.
• Detrimental effect on the employer’s ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality or performance.
• Insufficiency of work during the period the employee proposes to work

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What happens if the employer refuses the request?

The legal remedy for an employee who is unhappy with a decision to refuse a request for flexible working is actually fairly limited. The employee may bring a complaint in the Employment Tribunal, which may result in compensation of up to eight weeks’ pay. However, the Tribunal may not order the employer to implement the employee’s request for flexible working. Whilst this provides some comfort for employers, they should bear in mind that this is not the only avenue of redress for the employee. The employee may find themselves so badly treated that they resign and bring a constructive unfair dismissal claim, which could result in compensation in respect of any losses incurred whilst they seek alternative employment. They could further bring a sex discrimination claim, which again could result in compensation for loss of office as well as an injury to feelings award.

How then should an employer protect itself if it is not inclined to agree to a request for flexible working?

How to reduce the risk of potential claims

The following tips should enable you to reduce the risk of potential claims.

• Ensure that you stick to the process to make sure that you cannot be challenged for procedural failures.
• Show that you have given proper consideration to the request. Ensure that any letter of refusal is well reasoned and refers specifically to the criteria set out in the legislation for refusing the request. Provide evidence where possible to back up the reasons for refusal. This may be the state of the current job market, if that could make it difficult to recruit cover for a part time employee, or the volume of customer calls at a particular time of day to a call centre if you are concerned that there may be not enough work available at a particular time of day that the employee wishes to work.
• Get the employee to be pro-active in making the request. Employees are obliged to explain the effects that they think that their request might have on the business and to suggest ways of avoiding any problems. If the employee is unable to articulate the risks or show that they have thought about how the problem might be mitigated, you may find that they are actually helping you to find reasons to refuse the request.
• If you are unable to agree to the request, consider whether some compromise might be reached and look to negotiate to find an agreed middle ground.
• Consider an ongoing review of the arrangement to ensure that it is working out for both parties.
• Ensure that you act consistently across all of your employees

   

Whilst the flexible working regime does place a high administrative burden on employers, it is also possible to refuse a request for sound business reasons. Employers should show they have given proper consideration to requests and that they do have real reasons for refusal. They may actually surprise themselves by finding that the reasons they thought they had are not tangible and that in fact a flexible working pattern benefits not only the employee but also the employer by providing the employer with greater flexibility in terms of the availability of its workforce.