Will flexible working stretch employers’ tolerance?

With effect from 30 June 2014any employee with 26 weeks service wishing to work flexibly for any reason will have the right to make a flexible working request.  Whilst there is no obligation on the employer to agree a request – they must consider it, and must be able to show they acted reasonably.

The headlines:

  • There will no longer be an need to follow the statutory procedure.
  • The employer must act reasonably.
  • A decision must be reached within 3 months.
  • A request may only be refused for one of the 8 listed business reasons.  (See below)
  • Employees should be permitted to be accompanied during discussions about their application. (ACAS draft Code of Practice)
  • Employees should be permitted to appeal against a refusal. (ACAS draft Code of Practice)

So, whilst the statutory procedure is on the way out, employers will still need to have in place a similar procedure which enables them to process requests properly and fairly – and (perhaps more importantly) demonstrate that they did so.  Whilst therefore the procedure for determining requests is likely to remain largely unchanged (we recommend only relatively minor tweaks to existing flexible working policies), there will be new issues to be addressed.

  • What happens if a number of requests are received simultaneously?  This was less likely when caring obligations were needed to support the request.
  • How should requests be prioritised – are some categories of employees ‘more entitled’ to work flexibly than others?
  • How many requests can be granted – first come first served?
  • What about waiting lists for requests that can’t be granted immediately?

Employers are unlikely to be inundated with requests for reduced hours given the economic impact that will have on employees. However there are, of course, a myriad of alternative working methods that may appeal.  Working flexibly does not mean working less and many of the requests that employers will receive are likely to involve working from home (or at least not in the office given technology), or for compressed hours – 10 hour days in return for a 4 day week anyone?  The difficulty with such requests is almost certainly going to be the rationale for refusing some and granting others.  For example, the employees you ‘know’ are not going to take advantage and will genuinely work from home, versus those who will be less….., shall we say, reliable.

Concerns have been raised about the prioritising of competing requests, and this seems to be the area causing most employers a degree of anxiety.  Each and every application will need to be dealt with independently, and assessed on its merits.  By way of example, whilst an employer may be in a position to grant the first three requests it receives, it may simply be unable to grant the fourth (even where the circumstances appear identical to another request) without a damaging impact on the business.  Something that employers must bear in mind is that with each request granted the dynamic of the business unit in which the individual works changes – whether subtly or dramatically – and it is within the context of that changed business unit that subsequent requests will need to be considered.

The reasons for refusing requests remain:

  • Burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to re-organise work among existing staff.
  • Inability to recruit additional staff (whether due to availability or other reasons including unreasonable cost impact).
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficient work available during the periods the employee wishes to work.
  • Planned structural changes.

Employers will still be mindful of the potential for claims, now from a wider group, and are therefore likely to prioritise requests from employees who may have better grounds for a claim if their application is refused.  A working mother requesting a change to enable working from home one or two days a week to ease the pressure of commuting / nursery drop off and therefore spend more time with their child, may be more likely to be granted because of the threat of litigation, than a similar request from an employee with no children who wishes to work from home one day a week to increase their leisure time (cheaper flights / less traffic for weekends away).  Will that disparity result allegations of unfairness – certainly!  Particularly from employees without caring responsibilities who have historically felt that parental entitlements in the workplace rather leave them in the cold.

Minimising risks when considering requests:

  • Have in place a sensible procedure (akin to the current statutory procedure) which encourages all applications to be considered in the same way.
  • Encourages employees to think about why they want to work flexibly and the impact that granting their request will have on the business.
  • Informal procedures are almost certainly likely to result in more allegations of unfairness.
  • Look at the business case for each application individually.  Two very similar requests from different areas of the business may have very different (and yet fair) outcomes.
  • Consider the impact on the business unit and the business as a whole each and every time a request is considered.
  • Ensure decisions are held and considered centrally – not just within each business unit.
  • Consider the request in the context of existing flexible working arrangements.  Could alternatives to other flexible work patterns be agreed in order to      accommodate a particular request?
  • Is there room for compromise?
  • What will the effect of  turning down the request be – is litigation more or less likely?
  • If a request is turned down, consider the operation of a “waiting list” or a review of the request in 6 months time.
  • Consider how competing requests will be dealt with.  A formal policy on competing requests (as recommended by ACAS) is unlikely to be workable as the circumstances of each request is likely to be different in the majority of workforces.
  • Be prepared to justify any refusal – document the request and the rationale for refusal.  It is also good practice to document the rationale for granting a request so that similar considerations can be taken into account each time.

Overall, from a best practice perspective, the process does not really change.  Whether employers receive more requests remains to be seen – although the smart money is likely to be a spike in requests in September following summer holidays and a chance to consider work / life balance whilst lying on a beach!

For further information on flexible working, guidance on general procedures and specific requests please speak to your usual Magrath contact.