Legal Q&A: New flexible working rights
Many employers remain highly suspicious of flexible working and assume that it will have a negative impact on their business. This demonstrates the deep rooted views that business success can only be achieved with a culture of long hours and presenteeism. The latest generation to join the job market are however helping to challenge this with a strong emphasis on the benefits of work-life balance.
With more employees eligible to make requests there is clearly potential that those who don’t get their way will raise grievances or be resentful of colleagues who have previously had their requests accepted.
What should operators do when an employee asks if they can work from home or if they can reduce their hours ?
What is flexible working?
Flexible working can include part-time hours, flexi-time, job sharing, working from home, compressed hours and term-time working.
Should I have a policy on flexible working?
As with many areas of employment law, the best thing that an employer can do is to have a clear policy on flexible working so that employees are aware of their rights and managers know what their obligations are. Make sure that the policy takes account of the ACAS Code of Practice on flexible working and make sure that the policy is followed consistently.
What are the obligations?
Under the new rules, employers can set their own time limits for dealing with requests as long as the process is completed within three months. Employers should ensure that their managers are aware of employees’ rights and how to deal with requests as and when they arise. If requests are simply ignored or handled badly then employees may bring employment tribunal claims. Also, don’t assume that male employees will never need or want to work flexibly.
Can I reject a request?
Employers do not have to agree to every request that they receive for flexible working. Eligible employees can only make one request in every 12 month period and the legislation sets out clear grounds upon which a request can be refused. These include the burden of additional costs, inability to reorganise work amongst existing staff, detrimental impact on quality or performance or ability to meet customer demands and insufficient work during the period when the employee wants to work.
When rejecting a request it is crucial that the employer has evidence to satisfy one of the relevant grounds. Not only will this minimise the risk of a later claim it may also help the employee to better understand why what they are proposing is not feasible for the business.
However in this day and age it will be hard for any employer to justify a general full-time work only policy.
Video - Head of Equality at Acas, Steve Williams, explains how employers should consider the right to request flexible working:
What about women returning from maternity leave?
Over and above rights under flexible working legislation, women returning to work after maternity leave have protection under the Equality Act against discrimination. So if their request is refused they would have the option to challenge the employer’s decision as being discriminatory and in such cases if the claim is successful then potential compensation is unlimited. Even more reason for employers to handle such requests carefully and fully justify the decision reached.
What other options are there?
There are more than two outcomes to a request for flexible working. Rather than simply accepting or rejecting the request, the employer and employee may be able to agree upon a compromise that not only satisfies the employee, leaving them motivated and committed but that also meets the employer’s business needs. Employers should also consider the option of trial periods for new working arrangements so that both parties can better assess their viability.
For more detailed guidance on flexible working visit the ACAS website
Jane Cox is an employment partner at Weightmans.
