Flexibility: consider the potential benefits

The Flexible Working Regulations 2014 enable eligible employees to request changes to their working pattern. For example, this could be a change towards part-time working, homeworking or job sharing.

The flexible working regime now applies to all eligible employees who want to balance work with an outside interest, not just those with childcare responsibilities. For example, if a person wishes to adjust their hours to walk their dog, they can make an application for flexible working provided they are eligible.

Requests under this statutory procedure can be made by an employee who:

- Has 26 weeks’ continuous employment at the date the request is made;
- Not made any previous flexible working request in the same 12 month period.  The employer is required to deal with the request reasonably and within three months (including the time taken to hear an appeal). The employer should aim to discuss the flexible working request with the employee in order to better understand the nature of the employee’s request.  An employer may only reject the request by relying on one or more of the following statutory grounds:
- The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work or recruit additional staff;
- Detrimental impact on quality or performance;
- Insufficiency of work during periods the employee proposes to work;
- Planned structural changes in practice, there is wide scope to reject a request. The employer must show that it has thought about how the changes could work and also the grounds upon which it is relying.  Provided that the decision is genuine, and has been thoughtfully considered, the employer should not be in breach of its obligations under the statutory regime by rejecting a request.

Naturally, employers may be reluctant to agree to a flexible working request but they should also aim to consider the benefits that the change could offer, such as staff retention, increased morale and improved quality of work. The employer may even be able to see an alternative way of assisting the employee so as to achieve a benefit for both parties.

Similarly, the employer may not know how the new arrangement may affect its business, in which case it may be beneficial to seek to agree a trial period. This would allow both parties to assess the change on a temporary basis.

Under the statutory regime, an employee may bring a claim if it can show that;

- The employer failed to deal with their application in a reasonable manner;
- The employer failed to notify them of the decision within the decision period;
- The employer rejected the application for a reason other than one of the statutory grounds;
- The employer treated the application as withdrawn without the conditions being met if successful, the employee may be awarded up to eight weeks’ pay for their claim. The employer may also be ordered to reconsider the request.

The unreasonable treatment of a flexible working request may also give rise to other claims such as constructive dismissal or discrimination. even if the employer has not breached its obligations under the flexible working regime, it could still be liable to the employee in respect of these other claims by refusing a request, this time without reasonable justification.  Ultimately, flexible working requests will arise in most businesses and employers should be prepared to deal with them and consider the benefits a new working arrangement could offer. There should be appropriate, easy to follow policies in place that address the statutory procedure, together with meaningful consideration of the requests. 

Franklins’ employment team can advise both employers and employees with regards to how to deal with flexible working requests. For further information, contact Toni on 01908 660966 or e-mail toni.hudson@franklins-sols.co.uk