Employment Contracts

by Kate Russell

Employees and flexible working

The Children and Families Act 2014 introduced the current right to request flexible working. Any employee with six months’ (26 weeks’) continuous service has the right to request to work flexibly.

There is no obligation on an employer to agree automatically to a request for flexible working. The employee’s right is to request flexible working, and the employer must properly consider the request. The reasons for refusal are set out by the legislation.

Both men and women are eligible to request flexible working. However, the right to request flexible working extends to employees only. Workers such as agency staff, contractors and freelancers are not eligible.

What is flexible working?

The requested change to the employee’s terms and conditions must relate to:

  • the number of hours that the employee works
  • the times that the employees works or
  • the employee’s place of work (as between the normal workplace and the employee’s home).

Triggering the process

The ACAS Code provides a structure requiring an employee who wishes to lodge a request for flexible working to fulfil certain criteria when submitting the request. The employee should:

  • lodge the request in writing (email is acceptable);
  • date the request;
  • state that the request is a request for flexible working;
  • specify the change(s) to working arrangements that the employee would like;
  • state the date on which the employee proposes the requested change(s) should take effect;
  • indicate the effect(s) that the employee thinks the change(s) will have on the employer and how he thinks any such effects might be dealt with; and
  • indicate whether he has previously submitted a request for flexible working and, if so, when.

Where an employee’s request does not contain all the required information speak to the employee informally to explain what further information is required and ask the employee either to provide the missing information (verbally or in writing) or to resubmit the application with all the relevant information. Be prepared, where appropriate, to provide the employee with assistance to resubmit the application so that it provides all the necessary information.

One of the requirements in the legislation is that an employee who is submitting a request for flexible working must state:

  • the effect(s) that the employee thinks the change(s) will have on the employer, and
  • how the employee thinks that any such effect(s) might be dealt with.

For example, an employee who wishes to reduce his working hours should be able to anticipate that the desired reduction in hours would have the effect that he would no longer be able to fulfil all the job duties. The employee might suggest that the solution would be allocating some of the job duties to a colleague or dividing them up among a number of other members of staff. Alternatively, he might suggest that you could recruit another part-time employee as a job-share partner, and give some indication of how the job duties and hours of work could be divided up between two people.

The duty on the employee to state the effect of the changes that he is requesting and how this effect might be dealt with does not require him to possess a detailed understanding of how your business operates or to anticipate the full impact of the proposed changes. The aim of this aspect of the legislation is simply to encourage the employee to think through what he is proposing, and to consider if it is realistic and how the new working pattern requested might be made to work in practice.

Statutory requests for flexible working may not be made more often than once a year. This is regardless of whether a previous application was made for the same caring responsibility or a different one. An employee who has made a request to care for a child would, therefore, have to wait 12 months before making a second request to care for an adult.

Bear in mind that there’s nothing to stop you dealing with extra requests informally; it is only the statutory right which is limited to one request a year.

The procedure to request to work flexibly

When an eligible employee submits a request for flexible working you have to respond appropriately. That means considering it properly in a timely fashion. There is no statutory duty to agree automatically to an employee’s request. The aim of the statutory procedure is to encourage dialogue between you and the employee with a view to facilitating agreement on changes to the employee’s working arrangements wherever such changes are workable.

Before 2014, the statutory procedure provided strict time limits on dealing with a request. A manager had to hold a meeting with the employee within 28 days of the request being submitted and within 14 days of the meeting, the manager had to write to the employee, with a response.

Such a strict procedure is no longer required, although it would be a perfectly sensible one to follow. If there is likely to be a delay in discussing the request it is good practice to let the employee know. It is important that you deal with requests in a timely manner as the law requires the consideration process must be completed within three months of first receiving the request, including any appeal.

If for some reason the request cannot be dealt within three months then you can extend this time limit, provided the employee agrees to the extension.

If you agree to the employee’s request at the outset, it is not necessary for the process described above to be followed. The only thing that you need to do is to write to the employee, specifying the agreed changes to his terms of employment and the date on which the changes take effect.

If the employee’s chosen companion is not available on the proposed date of the meeting, you should, within reason, postpone the meeting to allow the employee to bring along the chosen companion. Such a postponement need be granted only once, and should normally be to a date that falls within one week of the original proposed meeting date.

The meeting should take place in private where it cannot be overheard by other workers. The purpose of holding a meeting with the employee will be for you and employee to discuss in a spirit of collaboration how the employee’s request might be made to work in practice. Approach the meeting with an open mind and a positive attitude, rather than viewing the employee’s request as being a nuisance.

In order for changes to be viable from a business perspective, it may be appropriate or necessary for you to negotiate a compromise between what the employee has requested and his current working pattern. You’re looking for a win-win outcome so the conversation with the employee could well explore possible alternative arrangements.

For example, if an employee whose workplace is open from 9am to 5pm has requested a change from full-time to part-time work and wishes to work from 9am to 12pm each day, if the first hour of the day is a quiet period, you might suggest the possibility of the employee working from 10am to 1pm. You might also wish to recruit a job-share partner to cover the afternoons and might prefer that person to start at 1pm rather than 12pm in order to reduce costs.

One of the issues that will require discussion at the meeting is the effect of any agreement to vary the employee’s working hours on his pay and other terms of employment. Clearly any agreed reduction in hours will be accompanied by a proportionate reduction in pay and you must ensure that the employee has thought this through properly.

Allow the right to appeal

If you refuse a flexible working application in the first instance it is good practice to allow the employee to appeal if he wishes to do so.

An appeal does not have to be dealt with face to face and you agree it can be held by phone or other method.

Allow an employee to discuss a refusal to grant his request if there is new information that was not available to you at the time you made our original decision or if the employee thinks the application was not handled reasonably in line with the company’s policy.

Considering an appeal can also help avoid the employee raising the issue as a workplace grievance. If asked by an employee, it would be good practice to allow employees to be accompanied by a work colleague to any appeal meeting.

Deal with appeals as quickly as possible. Make sure that the whole request is considered within three months of first receiving the original request for flexible working unless an extension is agreed with the employee.

The effect of agreed changes

Where you agree changes to an employee’s working pattern as a result of the flexible working request, these will be regarded as permanent changes to the terms of the employee’s contract, unless you and employee expressly agree otherwise. If the reason for requesting flexible working is a temporary matter, the employee should make that clear at the outset.

The default position, i.e. a permanent change, means that the employee will have no automatic right to revert to his previous pattern of working at a future date.

In the light of the fact that contract changes are permanent once agreed, it is sensible to build in either an end-date for the variation or review date to ensure that you have flexibility.

These provisions do not prevent you mutually agreeing further variations to the employee’s terms of employment in the future.

You can also agree that any changes to the employee’s working pattern should be implemented for a defined temporary period, or that a trial period should be implemented in respect of the proposed working arrangements.

A trial period can be beneficial for both parties, especially where there is some doubt as to the viability of the working arrangements requested. It can give both you and the employee an opportunity to review how the arrangements work in practice and whether or not they are likely to create any practical difficulties for the employee’s department or for the business as a whole.

At the end of any agreed trial period, hold another meeting with the employee to review how the revised working pattern has worked out and whether or not to make the arrangement permanent.

One advantage of agreeing to a trial period is that, if the employee’s request ultimately has to be refused, there will be some concrete evidence to back up an assertion that the pattern of working requested by the employee was not workable in practice. If a trial period is agreed, take care to document clearly that the new working pattern has been put in place as a temporary variation to the terms of the employee’s contract.

Set out the start and end date of the trial period, along with the changes that have been agreed. Note that you reserve the right, at the end of the agreed trial period, to require the employee to revert to his previous working pattern if, in management’s view, the changes have not proved to be workable.

The document should be signed by both parties.

Legitimate reasons for refusal

The legislation sets out a statutory list of business reasons that an employer may advance as justification for refusing an employee’s request for flexible working. The list is exhaustive, although quite wide in scope.

The valid reasons are:

  • the burden of additional costs;
  • a detrimental effect on ability to meet customer demand;
  • a detrimental impact on quality or performance;
  • an inability to reorganise work among existing staff;
  • an inability to recruit additional staff;
  • insufficiency of work during the periods the employee wishes to work; and
  • planned structural changes.

Where a request is refused, the reason for the refusal must be one of the above reasons. While cost is included in the list, be cautious. The courts can be quite dismissive of costs as a sole reason for refusal and you would have to demonstrate that the costs are substantial and unsustainable by you.

Employers are not entitled to invent their own reasons for refusing an employee’s request for flexible working, however compelling they may think another reason might be. Your convenience (or lack of it) of the fact that other workers ‘might not like it’ do not constitute valid reasons for refusing a request.

Always make sure that you have evidence to support a refusal to grant an employee’s request.

An employer may only refuse a request where there is a recognised business ground for doing so. Failure to follow a set procedure or decline a request without providing a recognised business ground can lead to a claim.

The case of British Airways plc v Starmer 2005, see below, showed the increasing willingness of tribunals to find cases of indirect discrimination proven and illustrates how difficult it is for employers to justify refusals of requests for part-time work. In this case, the employer’s requirement that a female employee work at least 75 per cent of her full-time hours was indirect sex discrimination, as it was a provision, criterion or practice that had a disparate impact on women and was not justified.

Example

S was a female commercial pilot who had been employed by BA since 2001. In 2004, following return to work after maternity leave, she applied to work 50 per cent of her full-time hours. BA refused to allow this, arguing that she needed to maintain a minimum number of flying hours, but stated that she could reduce her hours to work 75 per cent of her full-time hours. S lodged an appeal under the company’s procedure against her employer’s decision but was still unsuccessful. The business reasons given for the refusal included the burden of additional costs, an inability to reorganise work among existing employees, a detrimental effect on quality and performance and an inability to recruit extra employees.

S complained that BA had indirectly discriminated against her on the grounds of her sex. The company appealed unsuccessfully against the decision.

The EAT considered that the original tribunal had correctly weighed up the justifications put forward by BA for requiring that S work 75 per cent of her full-time hours, and was not persuaded that BA had satisfied the onus of justifying this requirement.

An issue of safety was considered separately as this was not taken into account by BA at the time of its decision, but raised as part of BA’s defence to the proceedings. Safety was considered to be a relevant consideration to the justification argument, even though it did not feature consciously in the decision making process. However, even when considered with all the other justifications put forward for refusing S’s request, the tribunal concluded that BA had not provided any cogent evidence as to why it would be unsafe or in anyway unsuitable for S to fly at only 50 per cent of full-time hours.

Remedies for employees whose rights are breached

An employee whose rights are breached in respect of a request for flexible working may bring a complaint to an employment tribunal.

The scope for such a complaint is, however, limited to circumstances where:

  • you have failed to follow a ‘fair’ procedure for considering the employee’s request for flexible working
  • the reason given for refusing the employee’s request was not one of the permitted reasons, or where no reason was given, or
  • the employee can show that the decision to reject his request was based on incorrect facts.

If an employment tribunal decides that an employee’s complaint is well founded, it may order you to reconsider the employee’s request for flexible working. In most cases the tribunal will also award compensation of up to eight weeks’ pay to the employee. A ‘week’s pay’ for this purpose is subject to the statutory maximum imposed by the Government from time to time.

Since any employee can apply for flexible working, problems could potentially arise regarding discrimination and this has been a major concern for respondents to the consultation. Will some employees be more equal than others depending on the reason for their requests? People with childcare responsibilities could potentially argue they have far more valid a reason to get flexible working as opposed to someone who simply wants to play sport on a weekend, and they may argue that since women are more likely to be immediately responsible for children it would be indirectly discriminatory not to consider their requests more carefully. An employee needs no minimum length of service to bring claim of unlawful discrimination. As well as all the usual protected characteristics (gender, age, race and so on), protection is also given on the basis of part-time status.

In order to defeat claims of this type, you will need to be able to show that, when viewed objectively, it is appropriate and necessary for business reasons for the job to be done full time by one person. You may wish to include a note in your flexible working policy that applications for flexible working will be dealt with on a first-come, first-served basis and resolved taking into account the circumstances prevailing at the time.

ACAS gives the following examples:

Example 1

Gary has been recently diagnosed with Crohn’s disease, a symptom of which is severe fatigue especially in the mornings. He explains this to his employer who enables Gary to work flexibly with a later start time than his colleagues. This is a reasonable adjustment under the Equality Act 2010 where employers have a duty to make reasonable adjustments.

Example 2

Andrew asks for flexible working to care for his children. Although the employer regularly allows women employees flexible working for this reason, he refuses Andrew’s request because he is a man and believes childcare is less important to him. This is likely to be direct sex discrimination.

Linda has childcare responsibilities and asks to work part-time. Her employer responds by saying that her job (a solicitor) is incapable of being done effectively by a part timer. Unless the employer can objectively justify this assertion it is likely that Linda is being indirectly discriminated against because of her sex as more women than men are likely to combine paid employment with caring responsibilities.

Example 3

James works in a travel agency and changes his hours using the right to request flexible working. James is happy with the change and according to his employer is doing well when he applies to attend a training course for advanced travel consultants. This is a residential course that results in an NVQ qualification. However James is told that as he is part-time he cannot attend and will receive ‘on the job’ coaching from a qualified colleague instead which will not result in a vocational qualification. Unless the employer can justify this policy it is likely to be unlawful under the part-time worker regulations.

Checklist for handling flexible working requests

Dos and don’ts

  • Do be clear about employees’ rights and your responsibilities as a line manager in respect of requests for flexible working.
  • Do check that any employee who has submitted a request for flexible working is eligible (for example that he has at least six months’ service).
  • Do arrange to meet with the employee to discuss his request as soon as possible, and no later than 28 days after receipt of the request.
  • Do encourage the employee to put forward his ideas about how the working pattern sought could be made to work, recognising that he may have some sound ideas about how the job might be done differently, but equally effectively.
  • Do establish whether an employee is open to discussing more than one alternative pattern of working.
  • Don’t forget that if you are in any doubt as to the viability of the requested change, it may be worth seeking agreement to a reasonable, and properly documented, trial period.
  • Don’t refuse a request unless there is a proper business reason to refuse it.
  • Don’t forget to record the agreed changes to the employee’s contractual terms in writing.
  • Don’t forget that promoting the right to request flexible working to employees may encourage work-life balance and improve motivation.
  • Don’t overlook the fact that adopting an open-minded and positive attitude towards requests for flexible working can benefit both employees and the business.
  • Don’t overlook the fact that following the required procedure with regard to the right to request flexible working will not prevent an employee bringing a claim for indirect sex discrimination in the employment tribunal.

There may be some occasions, when you receive more than one request to work flexibly closely together from different employees. Where this happens it may be possible to grant all of the requests received. However, before doing so look closely at the impact this would have on the business before coming to a decision. Having considered and approved the first request remember that the business context has now changed and can be taken into account when considering the second request against the business reasons set out above.

What about a situation where you may be able to agree one request but not both? When an employer receives more than one request, it is not required by the law to make value judgements about the most deserving request. An employer should consider each case on its merits looking at the business case and the possible impact of refusing a request. An employer may want to have a discussion with the employees to see if there is any room for adjustment or compromise before coming to a decision.

Make it clear to employees that requests are dealt with on a first-come, first-served basis and that the decision is based on the facts which exist at the time. If you have to make a decision to refuse a request in these circumstances make sure the basis for it is non-discriminatory. ACAS has suggested spinning a coin.

Select a template relating to the employee’s application and the employer’s response to either reject or accept the application.

Where an employer fails to specify which of the above grounds apply or where the request is rejected on some other ground, an employee may present a complaint to a tribunal.