Employers aware of business benefits but question employees’ need
The statutory right to request flexible working was significantly extended on 30June 2014. Yet research by Sage UK has shown that 10 per cent of small businesses are completely unaware of this new regulation, while a third are still not complying with the changes
Expansion
Previously, the right to request flexible working was available only to parents with children under 17 (or under 18 if the children were disabled) and those with caring responsibilities for adults. Now the right applies to all employees, provided they have at least 26 weeks’ continuous service and have not made another request within the previous 12 months. However, it seems that employers take a decidedly more sceptical view of applications from employees who were not previously eligible to apply. Some of our clients have commented that whereas previously the employee often had an evident need or worthy reason to submit a formal request, such as caring for vulnerable dependants, the fact that anyone can now apply has left employers questioning whether employees genuinely need to work flexibly.
Nevertheless, each request must be considered and dealt with in a reasonable manner to minimise the risk of claims arising. It may be helpful to remember the positives associated with flexible working when considering an application. Sage UK’s survey of 400 business owners revealed that 30 per cent believed that meaningful flexible working policies would help enhance employee productivity, and it has been suggested that flexible working boosts morale. It may also save the organisation money in less obvious ways, for example, by reducing overheads through allowing employees to work from home.
Considering requests
Although the eight statutory grounds for refusing flexible working requests remain the same as before the changes were implemented, the decision to grant a request is arguably a subjective one, with the statute declaring that the employer only has to consider that one of the grounds for refusal applies for the test to be satisfied. However, it should be borne in mind that a refusal may generate a discrimination claim or even one of constructive unfair dismissal if the request is handled badly or rejected without proper consideration. Consequently, employers who are considering a statutory request for flexible working may find the following suggestions helpful. They should be:
- Open minded - Showing an understanding of the circumstances that led to employees’ request is likely to assist employers in making a decision and will also demonstrate that you are genuinely contemplating the application. Employers should try to avoid a preconception that applications made by virtue of the new rules coming into effect have less merit than those made under the old rules.
- Remember precedents - It can often be overlooked that a colleague may presently have a similar flexible working arrangement to one that has been requested by another employee. If employers are considering rejecting a request similar to one that was recently accepted for another member of staff, they should be very clear on their reasons – this is a classic area where discrimination claims can arise.
- Willing to negotiate - Employees who feel that their requests have been dismissed immediately are likely to become disgruntled and may bring claims against the business. So if a proposed change is unacceptable, employers should consider using it as a starting point for a negotiation towards a mutually agreeable outcome. This may be achieved by considering less onerous options for the business or agreeing to a trial period if the organisation is unsure as to the effects the change may have.
The new rules may offer more employees the right to request flexible working, but they also remove the burden of a rigid procedure for employers to follow. One of the government’s core aims in providing this increased flexibility was to allow meaningful discussions to take place about finding a compromise. Businesses should adopt this approach where reasonably practicable to maintain a well-motivated workforce and to minimise the risk of claims.
Chris Cook is a partner and joint head of employment at SA Law
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