Qualifying employees have the right to make a flexible working request in the workplace, and employers should have fair and reasonable processes and principles in place to deal with those requests – a brief guide on how to avoid mistakes on flexible working requests is laid out below
Not implementing clear flexible work policies
Avoiding disputes in the workplace means that employers should generally stick to three core principles: fairness, consistency, and clarity. A failure to deal with any internal workplace matter in a way which is consistent, fair and clear will tend to lead to damaged relationships, trust, and complaints, and flexible working policies are no different.
It is not essential that all employers implement a flexible working policy – such policies are generally better-suited to larger, better-resourced organisations who have dedicated Human Resources teams. However, ideally, all organisations would implement such policies in order to allow their employees to understand how flexible working requests will be dealt with within an organisation.
Should your organisation implement a flexible working policy then it should: draft the flexible working policy clearly; set out the rights and responsibilities of both employer and employee relating to flexible working requests; set out clear and consistent procedures and time-frames that will be adhered to by both parties when a flexible working request is made.
Not dealing with flexible working requests fairly, promptly, and reasonably
A failure to deal with flexible working requests fairly, reasonably, and promptly can start or escalate a dispute with your employee. Whilst there is no legal requirement for an employer to deal with a flexible working request reasonably, doing so can avoid disputes and also help the employer to comply with the ACAS guidance on flexible working requests.
The recommended procedure laid out in the ACAS guidance is as follows: 1) once the flexible working request is made the employer should arrange a meeting with the employee as soon as reasonably possible to discuss the request; 2) the employer should allow the employee to be accompanied to any flexible working request meeting; 3) the employer should discuss the flexible working request with the employee to better understand what the reasons for the request are and what the employee is asking for; 4) not to discriminate against employees in the way in which the procedure is dealt with or the decision that is arrived at; 5) for employers to keep the employee reasonably informed of how the flexible working request process is progressing and any decision made; 6) and depending on whether the flexible working request is rejected or accepted, the employer should then communicate the consequences of such a decision to the employee
Rejecting a flexible working request unreasonably
An employer can only refuse a flexible working request for one of two reasons: 1) eligibility: the employee does not meet the criteria to make a flexible working request (i.e. they are an employee with no less than twenty-six weeks’ continuous service); and 2) legitimate business reasons: the employer can reject the flexible working request for one of the following reasons: a) the employer will incur additional costs; b) the employer will be adversely affected in its ability to meet customer demand; and/or c) the employer is unable to recruit additional staff to cover the flexible working request
If an employer unreasonably rejects a flexible working request then this could lead to a further dispute and potential Employment Tribunal claim.
Not allowing the employee an appeal against the decision to reject a request
Although employers are not legally required to allow the employee an appeal against the decision to reject a flexible working request it is generally recommended that employers do so for two reasons: 1) dealing with an appeal process may result in the internal resolution of a potential dispute; and b) it may avoid a further grievance or Employment Tribunal claim against the employer.
Dealing with a flexible working request in a fixed and inflexible manner
As detailed above, it is recommended that employers follow a consistent, fair and thorough procedure when dealing with a flexible working request: for example, if an employee is unable to meet their deadline for submitting an appeal against a flexible working request decision because the employee is sick then the employer should consider whether it is fair and reasonable to extend the deadline. Employers should consider employees’ circumstances in every particular case and deal with such processes in each case as it demands. Although consistency and fairness are key, inflexibility when the circumstances require it can lead to different problems.
