There has been a marked increase in the number of flexible working requests.
The situation is currently that all employees with 26 weeks’ service have the right to request flexible working. If their request is not appropriately dealt with, then employees have the right to bring a tribunal claim based on the process. The maximum compensation for such a claim (based on the procedure followed) is eight weeks’ pay.
The greater danger for employers is that some employees (usually women with childcare responsibilities) will have additional rights take their employer to tribunal on the grounds of indirect sex discrimination if their employer cannot justify a refusal to the exact flexible working scheme requested.
The traditional organisation’s response to a flexible working request was to say “the job is the job; the hours are the hours” – and whilst a job share may have been permitted for a lower grade role (where interchangeability would not affect performance), generally other requests would be rejected.
Such an approach would almost certainly now result in a finding of indirect discrimination, were it to be challenged. Recent tribunal claims by airline employees who were still breastfeeding and requested fixed shifts and others to reduce working days, have brought flexible working requests into the mainstream press.
The legal system isn’t anti-business – however, in a situation where a refusal leads to a detriment to an employee because of a protected characteristic (i.e. a female employee with child care responsibilities) then legally the burden shifts to the employer to justify the refusal. This entails having a legitimate business reason and acting reasonably (or proportionately).
The sensible approach is to consider “could we accommodate this request?”, rather than “do we have to accommodate this request?”. If it is not possible to accommodate it, then acting reasonably would also entail looking at alternative solutions – could an alternative solution to the one that the employee suggested work for the organisation? If so, then suggest it. A compromise solution may retain a valuable member of staff and prevent an expensive claim (discrimination compensation is potentially unlimited!).
Don’t reject the request out of hand. Follow your procedures with an open mind. Try to be creative and realistic to the needs of the employee and the organisation. It is also possible to agree to a trial period. If that doesn’t work then you would get far more credit from a tribunal for trying it first (in terms of a justification for defence showing that it didn’t work, or that it didn’t work well), rather than dismissing it out of hand.
Recent tribunal decisions have demonstrated that, where an employer has good reasons for rejecting a request to work mainly on evenings from home and also separately rejecting a request to reduce to four days per week (including one day working from home) predominantly due to legitimate organisation needs for internal or external clients and a genuine impact on performance, the employers – who had followed a fair process – were found to have justified the adverse effect on the employees in question.
So, take requests seriously, ask yourself whether the change could legitimately be made, and follow your process. Perhaps most importantly, seek advice from your HR or legal provider. Flexible working requests can be complicated and refusals can prove costly to organisations. If you need any help with managing flexible working requests, please speak to your HR Advisor or call one of our team on 01924 827869.