The results of a TUC survey published on 2nd September 2019 show that a third of flexible working requests submitted by employees are turned down. So what risks do employers face when a request is made and the answer is in the negative?
Is turning down flexible working requests breaching a statutory right?
No it isn’t. There is a statutory right to make a request provided the employee has 26 weeks continuous service, but there is no statutory obligation to accept the request.
The request can include part-time hours, compressed hours, flexitime, homeworking, job sharing or any other working arrangement which differs from what is currently performed. Employees can only make one request over any 12 month period and employers are obliged to consider the request in a reasonable manner.
On what grounds can an employer turn a request down?
The Flexible Working Regulations 2014 stipulates specific grounds that an employer can rely on to turn a request down:
- The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes.
It also stipulates that a request must be handled reasonably and the outcome given within three months of the request being made, including consideration of any appeal against an initial rejection.
How do you handle a request to qualify as handling it “reasonably”?
If you rely on one of the above grounds to turn down a request the law does not strictly require you to explain in detail how the ground applies. But in order that the employee does not feel unreasonably treated, it is advisable to hold a meeting to discuss the request, discuss the obstacles that you may see in order to give them the chance to suggest how they can be overcome and then issue your reasoning in writing with the right of appeal.
Make sure your reasoning sticks to one of the above stipulated grounds and that it is not based on any incorrect facts and that you do not for any reasons treat the application as withdrawn when the employee has not clearly withdrawn it.
So there is no legal risk?
An employee cannot bring a claim under the regulations on the grounds that the request has been rejected.
But an employee has the right to complain to an Employment Tribunal under the Flexible Working Regulations if the employer has treated the request unreasonably or they have been dismissed or treated to detriment for reason of making the request. Outside of the regulations though, there are often potential discrimination claims lurking in the background. The most common one is where a working mother seeks changes to working arrangements to accommodate childcare commitments. If a request for altered hours is turned down then a claim can be brought for indirect sex discrimination using the reasoning that working full time is statistically harder for a woman to comply with. To defend such a claim an employer would need to present clear justification for the decision beyond simply quoting one of the grounds for rejection in the regulations.
There are also consistency issues to bear in mind. If one person’s request is rejected and another’s is accepted, even if not at the same time, then if the person who is unsuccessful has a protected characteristic not shared by the other person, this can give rise to a claim of direct discrimination.
So how are the risks best minimised?
The best approach to eliminate these risks is to ensure that you can back up in detail any decision reached that a flexible working request cannot be accommodated. It is also beneficial to have a set process for handling flexible working requests so that employees know how to submit then and what to expect in terms of how they are handled.
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