Case Confidential – Flexible Working Requests

In the New Year, many people look to make changes in both their personal and professional lives. If one of your employees’ New Years Resolutions is to inquire about flexible working, here’s what you need to know.

  1. Is it an employer’s responsibility to encourage an employee to put forward a flexible working application or should I rely on the employee to put the request forward?

    If the employee has the legal right to make a flexible working application, there is little point trying to avoid this particularly if the employee has highlighted his/her intention to change working hours. It is advisable that the prescribed procedure is followed and you encourage the employee to put the flexible working request forward for consideration. The advantage of following the process is that the employee cannot put in a further flexible working request within 12 months of the initial request.

  2. What procedure must an employer follow when a request for flexible working has been received?

    There is no longer any statutory procedure for dealing with requests for flexible working. An employer who receives a valid request has a simple duty to consider it “in a reasonable manner” within a period of no more than three months. Acas has published guidelines which employers should follow.

  3. Is an employer legally obliged to agree to an employee’s request, for example, a request to switch from full-time to part-time working?

    A request can be refused, but only on one of the grounds specified in the legislation, which are:
    • the burden of additional costs
    • a detrimental effect on the ability to meet customer demands
    • an inability to re-organise work among existing staff
    • an inability to recruit additional staff
    • detrimental impact on quality
    • detrimental impact on performance
    • insufficient work for the periods the employee proposes to work
    • planned structural changes to the business.
    If the request is refused, the employer should allow the employee to appeal the decision.

  4. How can ‘reasonableness’ be determined for employees requesting the statutory right to Time off for Dependents?

    In Qua c John Ford Morrison (Solicitors) EAT/884/01) the EAT provided guidance to help employers determine what amounts the reasonable time off, stating that the following factors should be taken into account:
    – The nature of incident that has occurred
    – The closeness of the relationship between the employee and the particular dependant
    – The availability of another person to help or look after the particular dependant
    – The number and length of any previous absence related to caring for a particular dependant (for example where the child has a recurring illness).

    An employee would not be permitted to take time off from work so that he or she could care for a sick child (or another sick dependent) where that care is in addition to dealing with the immediate emergency.

    In the case of Cortest Ltd v O’Toole UKEAT/0470/07/LA the tribunal ruled that reasonable time off to care for dependents did not cover an employee who wished to take up to a month’s leave to deal with a childcare problem.

  5.  I didn’t follow the flexible working procedure, what risk am I facing?

    Employees can bring a claim to an employment tribunal if the employer has failed to follow the legal procedure for flexible working. Employers can be ordered to reconsider the application by an employment tribunal and/or award compensation. Compensation is limited to two weeks’ pay for failure to allow the employee to be accompanied at a meeting and eight weeks pay for failure to follow the prescribed procedure. However, it is worth noting, that with the recent introduction of tribunal fees, where a claim of this nature could cost an employee up to £390; hence it may not be considered worthy to pursue.