Do I need to allow a request for flexible working?

flexible workingI have a member of staff who has requested the right to vary her start time because of child care arrangements which are dependant on her husband returning from night shift. She is effectively asking to be able to start anytime between 9am and 10.30am. We could just about accommodate this – we provide caring services – but it would mean her colleagues being very flexible and they are not happy about that. Do I have to grant this request for flexible working?

From 30 June 2014 every employee has the statutory right to request flexible working after 26 weeks service. So if she makes the application formally, then you have a statutory requirement to consider this request and come to a view within 3 months.

She must make her request in writing stating it is a statutory request. She should state the date the request is made, the change to working conditions she is seeking, an explanation of how she thinks flexible working might affect the business and how this could be dealt with and the date she would like the change to take effect. As employees can only make one request in any 12 month period she must also state if a previous application has been made and the date of this. She should also state if she is making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability.

You will need to arrange to meet as soon as practical after receiving the request. Although not a statutory requirement it would be good practice to allow her, if requested, to be accompanied by a work colleague or trade union representative.

You must deal with the request in a ‘reasonable manner’ and so you should keep an open mind when hearing the request. There are a number of reasons why you can refuse the request: additional cost, inability to reorganise work, inability to recruit extra staff, insufficient work during requested change, planned structural changes, or detrimental effect on customer demand / on quality / on performance.

If you refuse, the employee has no statutory right to appeal against your decision, but it would be good practice to allow an internal appeal. It also helps to demonstrate that you have dealt with the request in a reasonable manner should the employee progress to an Employment Tribunal. They have the right to do this if they think you:

  • didn’t handle the request in a ‘reasonable manner’
  • wrongly treated the employee’s application as withdrawn
  • dismissed or treated an employee poorly because of their flexible working request, eg refused a promotion or pay rise
  • rejected an application based on incorrect facts

It sounds like in the circumstances you describe it would be reasonable to consider collectively with the employee and her colleagues as to whether her request is possible, and perhaps agree a trial period to see how it might work.

ACAS have produced guidance on dealing with flexible working requests in a reasonable manner.

If you do agree to the requested change, this will form a permanent change to her employment contract (unless you agree otherwise – such as a temporary change for a trial period) so remember to change her contract to include the new terms within 28 days.

 

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