BE FLEXIBLE WHEN MANAGING FLEXIBLE WORKING REQUESTS

More and more people in the UK are working flexibly. Whether that means working fewer days or fewer hours or working from home, more employees are looking for a greater work-life balance. Some have no choice in the matter and need flexible working to ensure they can attend to care commitments for children or other dependants. Others need flexible working to manage illness or stress. Whilst some people just don't want to work full-time and be a slave to their job. They have other interests and want to strike the right balance whilst at the same time being able to provide for themselves and their loved ones.

Employers are facing more and more requests for flexible working from their employees than ever before and as a result this is becoming an increasing business challenge. On the one hand, flexible working is a good thing. On the other, it can present businesses with difficulties and challenges, especially where workforce planning is tight.

A hasty decision in relation to flexible working requests can however in some instances lead to claims against an employer. For example, a refusal to consider a reduction of hours for a female employee with childcare commitments may amount to indirect sex discrimination if it cannot be objectively justified. In the same way, a request for flexible working may be seen as a reasonable adjustment for a disabled employee. Dealing with a request from a male employee less favourably than you would for a female employee may lead to claims of direct sex discrimination. There is also a risk in certain circumstances that you could face a constructive dismissal claim if it is held that the way in which you dealt with a request was in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

All employees who have 26 weeks' continuous employment can make a statutory request for flexible working. They do not need to have a reason for the request - that is to say, every reason is a valid reason. As indicated, the wish for flexible working hours or days etc can be for a variety of reasons (even to play golf on a Friday afternoon!).

The employer who receives such a request has a three month period to deal with it (including any appeal) although this time can be extended by agreement. The procedure is reasonably flexible but it requires the employer to meet with the employee to discuss the request. The employer must then consider the request and can decide to grant it or reject it, or come to some other form of agreement acceptable to both parties.

If the employer wishes to reject the flexible working request then they can only do so for one or more of the following statutory "business" reasons:

• the burden of additional costs;
• inability to reorganise work;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• detrimental effect on ability to meet customer demand;
• insufficiency of work; and/or
• planned structural changes

There is a set procedure that needs to be followed when making and considering a request for flexible working, although it is not massively prescriptive. The purpose of this post is not however to deal with procedural issues but rather to discuss certain issues that may crop up when handling such requests as well as providing some tips that I hope may be useful to your decision-making process.

Some of my tips are as follows:

Don't approach the request negatively

My first tip is that you should not approach the request negatively. The fact that someone is making a flexible working request does not mean that they do not value their job or enjoy working for you. It does not mean that they are not engaged. It is simply the case that they have a need to work flexibly as it suits them better to do so.

It is highly possible that an employee who is granted flexible working may prove to be as valuable as a full-time employee and may prove to be just as engaged. It is important therefore that you approach the issue with an objective open mind and not try to be looking for excuses not to entertain the request. If you start in this way, then more likely than not, you will be found out and that may end up costing you - either by a subsequent claim, or simply by losing an otherwise good and engaged employee.

Don't make assumptions

Unfortunately, I see this all the time. In the same way as you should not approach the process negatively, it is important that you do not make immediate assumptions that you cannot agree to a particular request.

Often I hear employers say "The team can't possibly cope if we cut her hours down" or "There is no way I can recruit on a job-share basis on those hours" or "We won't be able to service the client properly if he does not work on Friday". The employer may be right, but it is dangerous to make assumptions about the effect of granting a flexible working request. How do you know if a team will not be able to cope if one of their colleagues reduces their hours? Have you talked to them? Have you considered alternative ways of covering? How do you know you cannot offer a job share? Have you tried recruiting internally and externally? And what is so important about Friday to this client? Can someone else provide cover?

It is important therefore that assumptions are not made and that decisions are based on research and evidence (I shall come onto this further below). Whilst the statutory process does not require the employer to go beyond it's reason for rejecting for one of the stated statutory business reasons, a failure to go beyond mere assumption causes real difficulties when the employee subsequently seeks to make a claim of discrimination based on your rejection. If you have made an assumption that you simply cannot back-up, then a Tribunal might be persuaded to infer that there is some other reason behind your rejection (namely, discrimination).

Setting a precedent is irrelevant

Some employers are concerned that if they agree to a particular request for flexible working, they will be setting an unwelcome precedent which they will be bound to follow for any other requests which will then result in them being unable to manage their business. This is wrong. Each request should be considered on its own merits and at the time the request is made. Accepting one request because you are able to at the time of that request does not mean that you are bound to make the same decision for any subsequent request. For future requests, you will have to approach the position in a fresh way and based on the circumstances the business is experiencing at that time (including the working arrangements of other colleagues in the team).

Neither is setting a precedent a valid business reason for rejecting a request. If you are refusing an application for flexible working, it can only be for one or more of the stated statutory business reasons. Any other reason will open you up to a potential claim.

Properly consider the request and have evidence as a back-up

It is dangerous to just follow a paper-exercise when handling flexible working requests. Whilst there is no requirement for an employer to provide any explanation as such for rejecting a request (other than specifying the statutory ground for rejection), if you are going to choose a particular statutory business reason for rejecting it, if challenged you will want to make sure that you can justify your position. This is going to be particularly important if you face a subsequent discrimination claim.

The statutory scheme requires employers to deal with the request in a reasonable manner but does not define what is meant by that. ACAS in its Code of Practice for Handling in a reasonable manner requests to work flexibly suggests that you should consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes (having one eye on making sure that you do not discriminate against the employee).

Consider offering a trial period

Often employers simply will not know the effect an employee's flexible working will have on the business until this has been experienced in practice. They don't know what difficulties might be created with customer support, or with covering the hours with other colleagues, or the effect on quality or performance.

Employers should therefore consider offering a trial period as part of their decision in response to the request. Not only will this provide real life examples of what effect flexible working is having on the business, this will also go to support whatever permanent decision you choose to make. Should you choose after the trial period to reject the request, you are going to be able to rely on real evidence of where it has not worked well, which in turn will combat any future claim by the employee.

If you are offering a trial period, rather than simply accepting the request then as part of your initial decision you will still have to indicate your concerns based on the statutory business reasons and you will need to seek the employee's agreement to the trial period (as this is likely to extend the time for confirming a final decision in relation to the request). You will need to make it clear that the trial period is temporary and still part of your decision-making, and importantly, should you decide at the end of the trial period that you cannot agree to the flexible working request as a permanent change, then you will need to give the employee a right to appeal against this, notwithstanding that they have had the benefit of a trial period.

Stick to the statutory business reasons if rejecting

It may be an obvious point, but when considering the request, and in particular if you are going to reject the request, you need to make sure that you are doing so for one or more of the stated statutory business reasons (see above). Any other reason will not be a valid reason for rejecting the request and may lead you open to a claim.

It is important therefore that you keep one eye on these as you consider the request and make it clear what the business reason(s) is when responding to the request (if rejecting it).

What to do if you have more than one request in the same part of the business?

For some employers, they may have received a number of requests at or around the same time. Some try to consider these on the basis of which request seems more important and more likely to represent a risk from a discrimination point of view. Whilst I can see the logic in this, this can be dangerous and does run the risk of falling into the trap of making assumptions. For instance, in the example I gave at the beginning, an employee who requests flexible working to allow him/her to play golf on a Friday may well be making the request to help manage his/her stress or anxiety condition. Therefore who is to say his application (which on the face of it may not mention such things) is not just as important as the female employee asking for reduced hours to deal with childcare commitments. The point is how do you score in level of importance?

The safest way therefore to deal with such requests is to deal with them in the strict order they are received and to make this clear when responding to the employees concerned so that they are aware that other requests are also being considered. ACAS suggests that having considered and approved the first request in this way, the employer will need to remember that the business context has now changed and can be taken into account when considering the second request against the statutory business reasons.

Sometimes, when a number of requests are received around the same time, it might be appropriate to discuss this fact with the employees concerned to see if there is any room for adjustment or compromise before coming to a decision. If such employees realised that a number of people are making requests, then there may be scope for changing their requests in light of this or modifying their requirements.

A further alternative in this set of circumstances would be to agree with the employees concerned some form of random selection which might be useful if a number of requests are similar. This would be something you would need to agree with employees however.

From my perspective, the safest way of proceeding is to deal with the requests in the order they are received and against the business environment applying at the time each request is being considered.

Don't be afraid to offer a compromise and to ask for flexibility!

Finally, if you cannot agree to a request don't be afraid to offer up alternative forms of flexible working. For instance, you may in principle be agreeable to reducing an employee to 3 days per week but may have difficulty with accommodating a particular day, perhaps because that is a busy day for a client, or because the department is short-staffed on that day. In these circumstances, you may therefore be able to say that you can agree to reducing the working time to a 3 day week but not on the days requested and offer days that you can manage instead. This is likely to be looked on more favourably by a Tribunal if you then face a future discrimination claim.

Further, it is likely that at times you may want the employee to be flexible themselves and there may be times when you want to have the right to call them in on days that you have agreed they can have off, if operationally this is needed. It is important that if this is the case, then when agreeing the request you should make it conditional on the employee being available (perhaps on agreed notice) on those occasions when you need them to work greater hours or on different days. Again, this is perfectly reasonable and is something that a Tribunal is likely to be sympathetic to.

As with any flexible working request, there are a number of things that you as employer will want to think about and there are of course risks involved, particularly where there is the potential for discrimination claims. Hopefully some of the tips in this post enable you to manage the process more practically whilst hopefully retaining an otherwise engaged employee.

Alex Payton, Director and Employment Lawyer, Howes Percival LLP