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Dealing with flexible working requests
There has been a big change in the law which could rip up the rule book of nine-to-five, desk-based working. It means that some employers are going to have to shake off traditional practice and accept more flexible ways of working.
From 30 June 2014 any employee with at least 26 weeks’ continuous service has the right to request flexible working – and the right to expect their employer to deal properly with that request.
Flexible working rights only used to apply to parents of children under the age of 17 (18 if a disabled child) and to some carers. But those rights have now been opened up across the workforce. Now that length of service is in most cases the only barrier to making a flexible working request, employees are sure to take advantage of the opportunity to bring a better balance to their home and working lives.
But how should employers respond?
The three Rs
Reasonable. Reasonably. Reasonableness.
We’d love to say the new law brings with it a whole new concept – a fresh motto by which employers should operate – but it doesn’t. The reasonable employer concept strikes again, pervading the flexible working provisions just as it does the rest of employment law.
But before you tear out your hair at the use of this nebulous benchmark, remember this: reasonableness is a very human attribute. It’s about doing the right thing. And we think that, in real life, it’s usually not that difficult to work out what the right thing is.
Tip: Approach the new flexible working rules with an open mind and an understanding that if you act reasonably then you won’t go far wrong.
Let’s start at the beginning
The new law creates a broader category of people who can now ask to work more flexibly. But not every working person will be covered, and it’s important to bear this in mind and to communicate this to your staff.
The right applies to current employees who have worked for you for at least six months and who haven’t made a flexible working request in the last 12 months.
Workers are excluded, and so any agency workers you engage will not usually be covered - unless they are returning from a period of parental leave. Also excluded are employee shareholders (again, except those returning from parental leave) and members of the Armed Forces.
There are rules about how the request must be made. Among other requirements, the request has to be in writing, specifying the change the employee is looking for and how they think that change would affect you.
Tip: Don’t assume that a flexible working request is or is not valid. Carefully check the rules. And even if the request is technically flawed (eg it is undated or insufficiently detailed) it’s wise to let the employee know and give them a chance to resubmit a procedurally correct request.
Remember too that even if the person making the request isn’t legally eligible to make it, there is nothing to stop you granting their request if you want to. It's especially desirable to act cautiously where any protected characteristics (disability, gender, age etc) could play a part. Occasionally, a failure to agree to new working patterns could be unlawful discrimination.
Up-to-date is the best policy
If you already have a flexible working policy then it may need to be updated. Setting out your approach to flexible working in this way sends a strong, positive message to your workforce. It shows that you are on the ball, that you want employees to be aware of their rights, and that you will do things by the book.
Tip: Review your existing policies and procedures and bring them up-to-date. Remember to make employees aware of any changes. We can help you with updating your policies and on the best way of handling requests for flexible working.
What employees want
- There are various requests an employee can make but they’re generally going to be about changing:
- working hours
- the times when the employee must be at work
- their place of work.
The range of possible solutions is vast: part-time, job-sharing, compressed hours, home-working, shifts – and more. And just because you have never allowed employees to work flexibly before (maybe you haven’t considered options at all), take care not to dismiss them out of hand. A happy part-timer could be just what you need to boost productivity and raise morale. You just don’t know until you consider every angle of the request and its potential impact.
The change doesn’t need to be a permanent one either. Perhaps the employee is looking for a temporary solution in order to help them deal with a family situation, for example. It’s perfectly possible for you and your employee to agree a specific timeframe within which the change will take effect and at the end of it revert to their previous terms.
Tip: Be open to possibilities. What the employee is proposing could actually work very well for you – but that’s for you to decide, in the context of your organisation.
Deal with it
The request letter has landed. You’ve read it; you’ve had some initial feelings about what the employee is asking for; you’ve resolved to keep an open mind. What next?
1. Have a conversation
Arrange to talk to the employee as soon as you can. Even if you’ve decided that you will approve their request then it can be useful to get together to discuss the practical arrangements (although this isn’t a legal requirement).
If you haven’t yet made up your mind about the request then meeting with the employee will help you get a better understanding of what they want and why. The discussion should help you see the situation from the employee’s perspective and should get your own cogs turning about whether you could accommodate the practical effect of their altered working arrangement.
Make sure that the employee understands the consequences that the change could have on them, too. Reduced hours might lead to a salary cut and their pension might be affected, for example. Suggest they get some external advice on this.
2. Allow a companion
Peculiarly, the regulations which came into force on 30 June 2014 didn't say that an employee who has made a flexible working request has a right to be accompanied by a work colleague or a trade union representative (the older version of the flexible working rules did say that!) But Acas maintain that a reasonable employer would still allow an employee to be accompanied, and we agree.
3. Find a good date
If you propose a date and time which the employee cannot make, rearrange. But if the employee, without good reason, fails to attend a meeting and a rearranged meeting then you may be able to treat the flexible working request as withdrawn.
4. Meet in private
It isn’t always easy to find space at work which guarantees employees the privacy they deserve, but try to do this. At the very least, make sure that the conversation you have can’t be overheard.
5. Take time to weigh everything up
There is a real balancing act here. On the one hand you have an employee with their own particular circumstances and reasons for wanting to change an aspect of their working life. On the other is a business which must continue to function seamlessly and without disrupting either its main operation or the working lives of the rest of its workforce. There are all sorts of considerations, including cost and logistics. There are eight grounds on which you can refuse a request – and these are extremely wide:
• The burden of additional costs;
• The business won’t be able to meet customer demand;
• Work cannot be reorganised among existing staff;
• People can’t be recruited to do the work;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Not enough work during the employee’s proposed working times;
• The business is planning workforce changes.
If one or more of these reasons applies, you have good grounds for refusing the flexible working request.
6. Deliver your decision
This is not quite a deal or no deal situation. You may agree the request as made by the employee (or as changed during the course of your discussions), or reject it – on one of the eight grounds set out above. A third possibility is that you enter a trial period to test out how the arrangement would actually work. Consider this very carefully. While an employee cannot insist on a trial period, they may later argue that it was unreasonable of you to refuse to give it a go.
There is a set timeframe for letting the employee know what you’ve decided, and it’s sensible to explain very carefully why you reached the decision you did. Within three months from the date of the employee’s request you must have told them what you have decided initially and as a result of any appeal (Acas says it’s good practice to afford employees the right of appeal). That means that you must allow time within those three months to hold an appeal, if it becomes necessary.
You can agree with the employee to extend the three-month timeframe, and it’s a good idea to do this where you’ve entered a trial period.
7. Formalise the arrangement
A change to working arrangements is a variation to an employee’s contract and so it should be confirmed in writing. At the very least you should give the employee a written statement of changes within one month of the change taking effect.
And if it’s a temporary change, state that, otherwise it will be taken to be permanent.
8. Keep the arrangement under review
It’s a good idea to keep a close eye on how things are working under the new arrangement. That allows for teething problems to be sorted out and expectations on both sides met.
One of the main concerns employers have about flexible working is about floodgates. If you allow one employee to work from home twice a week, will everyone else expect to be able to do the same?
There’s something in this. Once employees begin to explore their flexible working rights, it will catch on. You may find yourself facing a batch of similar and sometimes conflicting requests and you must be careful to take each as it comes but with a close eye on the commercial realities of accommodating a new type of working.
Consistency is important and employees will be quick to point out when you have treated them less favourably than others. That’s why it’s crucial to take a rational and methodical approach to flexible working. Be prepared to justify differences in treatment and be open and honest about the arrangements that will and won’t work for you.
You’ll only do real justice to this once you let go of preconceptions about how your workplace can function. Jobs can be done outside usual working hours. Technology is enabling us to do far more than ever before, from more places and faster. Workplaces are changing, and it’s important to keep up.