June 15, 2022
If an employee makes a flexible working request, then employers should have principles and procedures in place setting out how these requests should be dealt with. Avoiding disputes in the workplace generally means adhering to three principles: clarity, consistency, and fairness. So, here’s a brief (non-exhaustive) guide to handling flexible working requests.
Ideally, all organisations should have in place a clear policy – this is, of course, more easily implemented by larger, better-resourced organisations who have access to dedicated Human Resources team but, equally, smaller businesses should also implement, if possible, a written policy. This should be communicated to employees and a copy kept where it is accessible (whether this is in electronic or hard-copy form).
A well-drafted policy should set out the rights and responsibilities of the employer and the employee regarding applying for, and dealing with, flexible working, and should set out consistent procedures that should be followed by both parties.
Dealing with requests
There is no legal requirement to deal with requests in a reasonable manner, but it is recommended that businesses do so in order to a) avoid unnecessary disputes; and b) comply with ACAS’s guidance on flexible working requests. Under the ACAS Code employers should try and stick to the following guidelines when dealing with a request:
- The employer should arrange a discussion with the employee as soon as reasonably possibly once the request has been submitted
- The employer should allow the employee to be accompanied to any meeting to discuss the request (either by a colleague or by a trade union official)
- The employer should discuss the request with the employee (in order to gain a better understanding of the reasons for the flexible working request, what the employee is seeking to change, and to better understand how the request might (or might not) benefit the business
- Employers must not discriminate against employees in dealing with, and making decisions about, requests
- Employers should inform employees of decisions relating to requests as soon as reasonably possible and, ideally, in writing
- If the request is agreed, the employer should discuss with the employee how and when the request will be implemented
- If the request is rejected, the employer should give the employee an opportunity to appeal the decision
Making a decision
Employers must notify the employee of the outcome of their flexible working request (including any decision relating to an appeal made by the employee) by the latest of the following: a) three months from the date on which the flexible working request is made; and b) such other, longer, period as the employer and the employee may agree. As a matter of best practice, however, the entirety of the flexible working request process (including the appeal process) should conclude within three months of the date on which it started.
Any agreement to extend the decision period needs to be addressed directly and agreed between the parties.
Making it happen (or turning it down)
If the employer agrees to the employee’s flexible working request, then the change made to the employee’s work patterns will be both contractual and permanent (i.e. there will be a variation to the employee’s contract of employment). The employer will need to issue a written statement detailing the changes that have been made to the employee’s contract of employment – this statement should, ideally, be signed by both the employer and the employee.
The employer should also ideally implement a review period to keep an eye on the changes and make sure that the changes are working as expected.
An employer can only refuse the request for one of the following reasons:
- Eligibility: the request does not meet the criteria to be able to make a flexible working request or is technically flawed (e.g. the flexible working request doesn’t specify the date on which the flexible working changes should be implemented)
- Legitimate business reasons: the employer can legally reject the flexible working request for the following reasons (this list is not exhaustive): additional costs that the employer will incur; an adverse effect on the employer’s ability to meet customer demand; and the inability to recruit extra staff
If the employer rejects the request, it should send a letter to the employee identifying why the flexible working request is being rejected.
Although it is not legally required that an employer allow an appeal against a decision to reject a flexible working request it is recommended that employers in practice allow employees a route of appeal (such an approach is recommended by the ACAS Code and may help to resolve issues without the employee needing to bring a grievance or raise an Employment Tribunal claim).
In an employer fails to reasonably deal with a flexible working request then it could open itself up, broadly, to two different types of claim:
- A claim under the statutory flexible working scheme (e.g. if the employer has failed to deal with the flexible working request procedure in line with the rules of the statutory scheme); and/or
- Another form of statutory claim: if the employer unreasonably rejects a flexible working request, or fails to follow a fair procedure in dealing with the request, then an employee could potentially have a discrimination claim (e.g. sex discrimination, age discrimination, or religious belief discrimination) or a constructive dismissal claim.