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Flexible Working
| 06 September 2019

Employment Law: Flexible Working Requests

It is important for both employers and employees to understand their rights and obligations in respect of flexible working requests.

Now more than ever there is an emphasis on the need for employers to be more flexible and that the traditional 9 to 5 is not suitable for many and evidence shows does not provide for the most efficient work forces.

Employers who do not provide employees with the opportunity for flexible working or at least fairly consider flexible working may find themselves losing key employees, have a demotivated and therefore inefficient work-force, having to deal with absent employees and seeing an increase in complaints and potential claims for failing to deal with request properly.

Albeit it is also necessary that employees appreciate the need to work together with their employers to find something that works.

Who can make a flexible working request?

Employees with at least 26 weeks continuous employment have the right to make a request for flexible working. A request can include a change in the hours that the employee works, the time the employee is required to work and/or the employee’s place of work. Employees with less than 26 weeks’ service can still make a request but the employer is not usually obliged to consider this.

Can an employer refuse flexible working?

Employers must deal with flexible working requests in a reasonable manner and notify the employee of their decision within three months.

Employers can refuse flexible working requests if it can justify one of the following grounds:

  • Burden of additional costs;
  • Detrimental effect on ability to meet customer demands;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality of service;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes.

Whilst ACAS guidance is available there is no definitive statutory definition of what amounts to “a reasonable manner” for the consideration of flexible working requests. It is therefore sensible for employers to ensure a Flexible Working Policy is in place and to take legal advice at an early stage if a request is made.

Employers should be able to show that they have properly considered any flexible working request in order to minimise the risk of potential tribunal claims. This will include meeting with the employee to full discuss and explore their request and any potential alternative if their risk cannot be accommodated. It may involve conducting a risk analysis as to the impact on the business vs the benefits to the employee and how such impact can be alleviated.

If a tribunal upholds an employee’s complaint for failing to properly deal with a flexible working request they could be required to reconsider the employee’s request and/or award the employee compensation of up to 8 week’s pay (subject to the statutory cap). They may also be exposed to other claims by that employee such as discrimination or constructive dismissal.

If you require further advice call us now on 01702 338338.

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