By Robert Reddin
In the UK, all employees with at least twenty-six weeks’ continuous service have the right to make a request to their employer for a what is misleadingly called a flexible working pattern. Much has been written about this right from the employee’s perspective, but it is a two-way street and this article looks at the issue from the employer’s point of view.
Six things you need to know:
Here are six things you need to know, as an employer, about handling flexible working requests:
#1. Although a qualifying employee has the right to request a flexible working pattern, there is no automatic right to have their request granted.
#2. The request must be made in writing, signed and dated, and must specify:
- What working arrangements are being sought, such as part-time working including the hours and days to be worked, working from home, term-time only working, annualized hours, flexi-time, etc.;
- When the employee would like the new arrangement to start; and
- Explain what effect, if any, they think the proposed change will have on your business and how, in their opinion, any such effect might be dealt with. The employee is not expected to make a cost benefit analysis or to conduct an in-depth investigation, but they are required to give some thought about how their proposal might affect their co-workers and its affect on how your business is delivered.
If the application does not meet these requirements, you are not obliged to give it any consideration. Instead, it should be returned to the applicant for correction.
#3. You must give serious consideration to all valid requests for a flexible working pattern. In some cases, the request can be agreed without the need to hold a meeting to discuss it. If not, you should have a meeting with the employee to discuss their proposed new working arrangements. This meeting should be held as soon as is reasonably practical after the request is received.
The employee’s focus is often on where and when they will work, and their pay. The meeting will also need to consider what the employee’s duties will be and how they can be properly performed under the proposed arrangements. For example, if the employee wishes to move from full-time working to part-time working, which of their work will need to be reallocated and how might the work be reorganized to accommodate the request? How might the change affect any bonus scheme you have? How will pension contributions and their paid annual leave entitlement be affected?
Or, if they wish to work from home, you will need:
- To conduct a health and safety risk assessment;
- Consider how you will effectively manage a remote worker;
- Provide suitable workplace equipment;
- Arrange suitable insurance cover; and
- Consider how to prevent them feeling isolated.
In the real world, you might need to have more than one meeting. Such meetings often result in the employee modifying their request. Once that modification is confirmed in writing, you should to give it serious and prompt consideration.
Depending on the change being requested, it can take up to three or even four months for the process to be completed. It would also help to avoid misunderstandings if you were to let the employee know by when you expect to have made your decision. If there is a delay, the reason for it should be explained to the employee.
#4. There is no legal right for the employee to have a trial period for their new working arrangements. However, it might be sensible to voluntarily offer a trial period, which should be long enough for both you and the employee to assess how the new arrangements are working out. At the end of the trial period the new working arrangements can either be made permanent, or the employee reverts to their previous working arrangements. For practical purposes:
- If you consider that the trial period was unsuccessful, you should treat it as a refusal of the request; and
- Do not automatically treat the application as withdrawn if the employee considers that the trial period was unsuccessful. Instead, they should be invited to consider withdrawing their application and to bear in mind that if they do withdraw their application they will not be permitted to make another application for twelve months.
However, the trial period may show that by making some minor adjustments, the new working arrangements can be made acceptable to both you and the employee. In which case agree those modifications with the employee and confirm the arrangement as being permanent.
#5. If the application is granted, with or without modifications, you must tell the employee when their new working arrangements will start. These new arrangements are permanent and, other than the employee believing they are more suited to their circumstances, might be just as inflexible as the ones they replace. It is good practice to issue a revised contract of employment to the employee that accurately reflects the new arrangements.
You should also inform the employee that, by law, they may not in the next twelve months make another application to change their working pattern.
#6. You may only refuse the application for one or more of the following business reasons:
- 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
- A detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- A planned structural change to the business.
You must provide the employee with:
- A written notice of your decision, which contains a sufficient explanation as to why the business ground(s) for refusal applies in the circumstances; and
- Inform them of how to whom they may make appeal against your decision.
You should also inform the employee that, subject to any appeal they may make, by law they may not in the next twelve months make another application to change their working pattern.
Not all applications for a flexible working pattern can be agreed. Even though an applicant may be disappointed, experience has shown that employers are unlikely to experience difficulties if they treat such requests seriously, deal with them within a reasonable time, provide an appeal mechanism, and maintain good communications with the applicant.
Robert Reddin has been providing HR support and guidance to a wide range of businesses in England and Wales since 2001. He has worked with hundreds of companies in many business sectors. He is the director of My Virtual HR Ltd which provides HR support and a range of employment contracts, employment handbooks, HR forms and template letters from its membership website. For more information visit our website at: http://www.myvirtualhr.co.uk