Employers must consider the merits of each one to avoid discrimination
Employees no longer have to have parental or caring responsibilities to be entitled to request flexible working arrangements such as working part time, job sharing or working from home. Since 30 June, all employees have had the right to request to work flexibly, provided they have at least 26 weeks’ continuous service and have not made a similar request in the previous 12 months.
Consequently, employers are now more likely to face competing requests from two or more employees.
Decisions
Employers must consider requests “in a reasonable manner” and provide a decision, including the outcome of any appeal, within three months of receiving the request, unless this time period has been extended with the employee’s agreement.
Acas has produced both a statutory code of practice and a good practice guide on dealing with flexible working requests. The guide suggests that if an employer is faced with competing requests and is unable to agree to all of them, it may consider random selection - in other words, see who draws the short straw – if it has the agreement of the employees concerned.
However, this approach could potentially give rise to claims for constructive unfair dismissal and discrimination from employees if they believe the employer failed to deal with their requests reasonably. So how can employers deal with competing requests fairly and reasonably?
Request forms
The first step is to ensure that flexible working requests contain as much information as possible about the benefits of the proposed arrangements for both the employee and employer, the effect the employee thinks the changes would have on the business and how this could be dealt with.
Asking the right questions on the request form will increase the likelihood of the employee providing this information. It is particularly relevant whether the request is made by someone with parental or caring responsibilities, or for religious observance purposes, or potentially a reasonable adjustment for a disability or for any other protected characteristic.
Compromises
The second step is to discuss the request with the employee, not least to understand any issues that may give rise to discrimination claims. Requests that compete with those of other employees may in fact only conflict in the short-term - for example, while an employee copes with bereavement or goes through rehabilitation after leaving hospital.
Where two or more requests do conflict with each other, the employer could, with the agreement of the individuals concerned, speak to all of them about how to manage the needs of the business and the competing requests. For example, asking someone who currently works flexibly to amend their arrangements, temporarily or permanently, may enable the parties to reach a solution acceptable to all.
Fair process
Requests may be dealt with on a first come, first served basis. So the impact on the business of approving the first request can be taken into account when considering the impact of subsequent requests. This will not necessarily allay the risk of discrimination claims, but can be a fair process for dealing with competing requests where discrimination is unlikely.
There is no set hierarchy of needs for considering requests; each request should be considered on its merits. An employer intending to prioritise requests - for example, from parents - could face indirect sex discrimination claims and would need to be able to objectively justify any discriminatory treatment. Ideally, there should be a clear policy which explains that this may happen.
Rights
Employees do not have the right to work flexibly. The right is to make a request and for the employer to consider it. However, where the request is for a reasonable adjustment for a disabled employee, then the employer has this additional factor to consider.
Employers can approve or reject a request or offer a compromise, such as informal flexible working arrangements, trial periods or temporary adjustments. If the employee turns down the compromise, then the request is refused. Employers must have one or more of the statutory eight business reasons for refusing the request. They no longer have to specify their reason(s) for refusing a request, but doing so could help them deal with any potential claims and is also good practice.
Clare Davis is an associate at Charles Russell Speechlys
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