As technology advances and society changes, full time workplace based working is no longer the only option, particularly as work-life balance is increasingly important to employees. It has been the case since 2003 that parents of young and disabled children and those who cared for another adult have had the right to request to work flexibly. This right was extended earlier this year to all employees with 26 weeks service. Employers in the hospitality sector may be wary of embracing flexible working, believing that they will be inundated with requests and that flexible working will have a negative impact on their business. It is important to remember that this is a right to make a request to work flexibly not a right to work flexibly. As an employer you must consider all the requests you receive, but there may be valid reasons why the request cannot be granted. It is important that you know how a request should be dealt with and to ensure that decisions taken, and new arrangements made, are properly recorded.
What is flexible working
Flexible working is a pattern of work that is not full time workplace based, including part time work, work from home, term time work, job sharing and flexi-time.
Who can request to work flexibly
Any employee (male or female) who has been employed by your business continuously for 26 weeks can make a request to work flexibly. An employee can only make one request in any 12 month period.
Making and handling a request
Under the previous legislation a detailed timetable for dealing with a request to work flexibly was set out. Under the new provisions the only requirement is that the request is considered and decided upon within 3 months. The legislation requires an employee to make a request in writing, setting out:
- The date of the application, the change to working conditions they are seeking and when they would like the change to come into effect
- What effect they think the requested change would have on the employer and how, in their opinion, any such effect might be dealt with
- That this is a statutory request and whether they have made a previous application for flexible working (and if so, the date of that application).
Flexible working policy
The legislation does not set out a strict timetable or procedure for handling a request to work flexibly. You should therefore have a company policy covering to whom requests should be made and how they will be dealt with, including a timetable, the appeals process and the right to be accompanied to meetings. You should also set out the 8 statutory grounds on which a request can be refused (see below). Having a policy will help to ensure that your managers know what their obligations are and help ensure that you deal with requests consistently and fairly.
Considering a request
It is a good idea to hold a face to face meeting with the employee who has made a request to work flexibly if at all possible. It is also good practice to allow the employee to be accompanied by a colleague or union representative to this meeting. At the meeting you should discuss the changes that the employee seeks and how these can be accommodated. When considering a request you need to weigh the benefits of the changes to the employee and your business against the adverse impact that the changes will have on your business.
Reasons to reject a request
If you decide to reject the application you can only do so for one of the business reasons as set out in the legislation which are:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to your business.
You should notify the employee of your decision in writing. The ACAS Guide to the Right to Request Flexible Working covers each of these reasons in detail giving examples of how they might be applied in practice.
Appeal
You should notify an employee of their right to appeal against your decision and give details of your internal appeals procedure.
Treat requests fairly
It is important that all requests to work flexibly are handled fairly. It is possible that you may receive 2 similar requests to work flexibly. If you have granted the first one and then receive the second, your business situation will have changed and you must consider the request in the light of that. If you receive 2 requests at the same time then it may be that it is not possible to grant them both. You are not required to make a value judgement about which request is more deserving. You should talk to the employees concerned and other members of the team to see if a solution can be reached. If a request is not properly considered then an employee may bring an Employment Tribunal claim, the maximum award for which is 8 weeks pay (capped). In considering a request, if you apply any criteria which is in itself indirectly discriminatory and cannot be justified then the employee may bring a claim for indirect sex discrimination, the award for which is uncapped.
ACAS Code of Practice on Handling a Request to Work Flexibly
When handing a request to work flexibly you should make reference to the ACAS Code of Practice. It is helpful, brief and Employment Tribunals will take compliance with the Code into account when considering a relevant case.
