Dealing with Flexible Working Requests

Whilst the new statutory procedure is far less prescriptive, employers must ensure that they update their written policies and procedures relating to flexible working requests.

• Requests should be considered promptly and in a reasonable manner and the employee must be notified of the outcome within the three month decision period.
• Managers who have a responsibility for dealing with flexible working requests should receive appropriate training.
• Make sure the manager who is appointed to consider the request has the time to deal with it in a timely and comprehensive way. Delay and a failure to consider all the relevant facts may well render a refusal decision unsafe as not being dealt with in a “reasonable manner”.
• The new regime is supported by an Acas Code Handling In A Reasonable Manner Requests To Work Flexibly, which is still in draft form at the moment. Employment tribunals must take the Acas Code into account when considering claims under the statutory scheme.
• Additionally there is a ‘best practice’ Acas Guide, ‘Handling Requests To Work Flexibly In A Reasonable Manner: An Acas Guide’.
• Under the new regime, subject to the Acas Code, it will be down to an employer’s HR policies to set out the appropriate procedure for an employee to follow when making a flexible working request. Employers will have the flexibility to adopt a flexible working request policy that reflects the size, style and requirements of its business or organisation.

Avoid rejecting a flexible working application on the grounds that the employee has made a technical error. The best practice approach is to notify the employee of the technical fault and invite them to resubmit an amended application which can then be judged on its merits. Do not then prevent an amended application being submitted on the basis that a previous application was submitted less than a year before.

Arguably employees can reasonably expect help and support from their employer in complying with the process. An outright rejection on a technical point is likely to be criticised and judged accordingly by the employee or by the employment tribunal. An employee may conclude that if his or her employer has rejected a flexible working request on technical grounds this amounts to a constructive unfair dismissal or it could also result in a discrimination claim under the Equality Act 2010.

You should consider the employee’s flexible working request before meeting the employee to discuss it. You should identify the potential business issues and consider ways to mitigate them. If issues or concerns exist these should be discussed with the employee’s manager and, if relevant, other colleagues.

Alternative ways to meet the employee’s objectives should be considered if the proposed working pattern cannot be accommodated for sound business reasons.

By demonstrating that you have objectively considered the application and the issues that arise from it you are more likely to demonstrate to the employee that you have taken the request seriously and your approach is genuine, even if ultimately you conclude you are unable to agree to it.

Avoid adopting a negative approach to any request. Previous employment tribunal cases, under the old statutory procedure, emphasised that employers should concentrate on how difficulties could be overcome rather than approaching the request by considering why it could not work.

If you cannot agree to the initial request, you should still consider alternatives that may work both for you as the employer and your employee. You should be careful of inadvertently indirectly discriminating on the grounds of sex. The wider the options that the employee is willing to consider and therefore the wider the range of options being rejected by the employer means the more difficult you may find it to objectively justify the refusal of the request.

You should discuss alternatives with the employee. You may be able to offer a trial period or agree a solution that does not involve a permanent change to the employee’s contract.

If your organisation has one or more roles that it considers could not be performed on a flexible basis you should consider whether this belief is based on inappropriate stereotypes, prejudice or a genuine business need. You need to check that any belief can survive objective critical analysis. If it does not you may not be able to defend a sex discrimination or disability discrimination claim (even if you can lawfully reject a flexible working request made under the new statutory regime).

Whilst the employment tribunal has very limited grounds on which to consider the commercial rationale for your decision to reject a request, it can find that the rejection was made on the basis of “incorrect facts”. This is more easily avoided if the basis of your decision is fully and clearly explained in writing to the employee at the time the decision to refuse the request is communicated to the employee.

When an employee receives a clear and credible explanation of why his or her request has been rejected and, where appropriate, an alternative cannot be found, he or she is more likely to remain an engaged member of your workforce and less likely to challenge the decision by alternative means such as through a discrimination claim.

Your considerations and the process followed should be recorded on file and carried out in a way that ensures each decision is consistently made. The basis of any rejection of a request must also be consistent with previous decisions. Any inconsistent decisions should be explained (for example on the basis that the organisational capacity for flexible working has been reached and that to grant any further requests would undermine the business).

Although not part of the Acas Code, you should offer the employee a right of appeal against any decision to refuse a request. It is likely that the tribunals will see the right of appeal as an essential part of the employer dealing with a request in a “reasonable manner”.

For each flexible working request you should maintain a comprehensive file on which you should place all correspondence and relevant documents. This will minimise the risk of key documents getting lost.

The employer must deal with the request in a “reasonable manner”.

The Acas Code suggests that an employer must act reasonably in the way it makes its decision, not just in the manner in which it handles the application. For example, paragraph 8 of the code sets out guidance on how an employer should consider the request: “you should consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes, see paragraph 11. In considering the request you must not discriminate unlawfully against the employee”.

For employers the real risk with a flexible working request lies not in the employment tribunal sanctions but in discrimination and constructive dismissal claims. Even if you correctly follow the new procedure, you may well still face an indirect discrimination claim, for example based on sex or disability. Additionally a failure to deal with a request in a reasonable manner could justify an employee resigning and claiming that he or she has been constructively and unfairly dismissed.

The team at Quantrills will be pleased to hear from you if and when you require specialist help in dealing with any individual request.