All employees with at least 26 weeks’ continuous service with their employer have the right to make a request to work flexibly, provided they have not already made a request in the previous 12 months. The right used to be limited to parents and carers, but this is no longer the case.
Flexible working is a way of working that enables employers and employees to come to an arrangement that suits an employee’s needs. Such as having flexible start and finish times or working from home. Other types of flexible working include:
- Job sharing – two people do one job and split the hours
- Part time working -less than full time hours
- Compressed hours – full time hours over fewer days each week
- Flexitime – employees can choose start and finish times but core hours must be worked
- Annualised hours – a certain number of hours are worked each year, with flexibility as to when
- Phased retirement – reduced working hours for those looking to retire
- Staggered hours – different start/finish/break times from other workers
Right to Request, Not to Receive
Once an application for flexible working is received, it must be dealt with in a “reasonable manner”, and usually within 3 months. This does not mean that a request cannot be rejected. Employees have a right to “request” flexible working, not the right to work flexibly.
Applications can be rejected provided the employer has a legitimate business reason why the request cannot be accommodated, including:
- The burden of additional costs
- Detrimental impact on ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes
The Employment Tribunal has recently been asked to consider the flexible working regime, and the limit on the rights of an employee.
Whiteman v CPS Interiors Ltd and Others [2015]
Ms Whiteman was a designer for a company that refurbished commercial premises. She requested that, on her return from maternity leave, her hours could be reduced following the birth of her twins. This request was accepted.
However, Ms Whiteman also requested to do them majority of her work from home, after 6pm. This could not be accommodated by the Company and it was rejected. The Company stated that its collaborative way of working often involved designers being together in a room looking at technical designs, and designs would often have to be changed at short notice, which would be difficult if Ms Whiteman only worked at home in the evenings.
Ms Whiteman resigned and claimed constructive dismissal due to the rejection of her flexible working request. She also claimed breaches of the flexible working legislation and indirect discrimination, although she refused to deal with her complaints under the Company’s grievance procedure.
The Tribunal was clear in its decision. Ms Whiteman’s claims were rejected, and the Tribunal confirmed that employees only had a right to request flexible working, and not a right to work flexibly. An employer has the obligation to deal with a request in a reasonable manner, and as long as their approach is not discriminatory, flexible working requests can be rejected on the basis of one or more of the grounds specified in the legislation as being legitimate business reasons.
Handling Flexible Working Requests
Employers will often be required to deal with a flexible working request from an employee. Whilst it is important for an employer to do all they can to reasonably accommodate the needs of its employees, this must be balanced with the needs of the business.
Many flexible working requests will be made, understandably, following an employee’s return from maternity leave. Employers will accept that returning to work after maternity leave is likely to cause some difficulties for employees, and it is recommended that employers assist in any way that they can. This may involve reaching a compromise with the employee.
Requests should be handled fairly and consistently. Each request should be given due consideration before it is accepted or rejected to ensure whether the business can accommodate the request. It is recommended that employers have a flexible working policy in place as part of their staff handbooks. This will ensure employees are clear as to the extent of their right to request flexible working, and are aware of the grounds on which a request can be refused. Equally, a policy ensures that employers take a consistent approach when considering flexible working requests.
