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Flexible working for all – can it work?

07 Mar 2014

Can the newly extended right to request flexible working be made to work for everyone who wants it?  Accommodating multiple requests can be difficult even for large organisations but particularly for SMEs.  Here are 10 tips for dealing with flexible working requests.

  1. Remember that employees have the right to request a different working pattern, not a right to have it.  Sometimes employees have to be reminded of that at the beginning of the process.
  2. There are only eight statutory reasons for refusing a request, although they are broad enough to encompass most situations.
  3. Employers now have three months in which to respond to a request and can use that time to assess what the impact of flexible working might be, either with a view to accepting the request or with a view to rejecting it.
  4. Receiving a flexible working request can present an opportunity for negotiation with an employee.  For example, you might give a preliminary indication that their original request is unlikely to be granted, but that a different request might be accepted.
  5. The immediate penalty for not dealing reasonably with a flexible working request is relatively small: an employee can claim up to eight weeks pay in a tribunal.  But worse lies in store: constructive dismissal and (indirect) discrimination claims are commonly linked to the poor handling or unreasonable refusal of flexible working requests.
  6. Having a blanket refusal policy is likely to be indirectly discriminatory against women because it is probably still the case that women in the workforce generally bear a greater share of childcare responsibilities and need flexible working arrangements to help them deal with childcare.
  7. If you receive multiple requests, picking names out of a hat isn’t a good idea.  Although ACAS suggest that it might be an appropriate tie-breaker if you receive two very similar requests, I suggest that it is always better to try to find some real differentiating factor between them.
  8. “First come, first served” doesn’t apply.  If A and B work in the same team and you agree to A’s flexible working request, you cannot reject B’s request simply because A got in first.  You need to be able to justify the rejection by reference to the eight statutory reasons.
  9. If A is a single male who wanted the flexibility so that he could fit work around training for Ironman triathlons and B is a working mother, there is the potential for B to bring an indirect sex discrimination claim even if you reject her request for a statutory reason.  It would be something of a test case, but few employers want to have a test case.  Better to try to work out a compromise solution involving both of them.
  10. Try to manage future expectations.  New working patterns agreed as a result of a flexible working request have contractual force and employees whose requests are accepted tend to perceive that the arrangement is absolute and permanent.  But you should try to manage their expectations by making it clear in your policy, or when you agree to a request, that you might have to review things in the future if other employees in the business or in the same team make flexible working requests or indeed if the circumstances in the business change.

 

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