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A survey conducted by the Trade Union Congress (TUC) of around 2,700 workers found that 30% of flexible working requests were turned down by employers. 58% of workers (and 68% of workers in “working class roles”) believed flexible working was “unavailable” in their place of work. The TUC criticised the current legislation for giving employers “free rein” to refuse flexible working requests.

So, what are an employer’s obligations when a flexible working request is made? Let’s take a look.

Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. This is how the process works:

1. The employee triggers the procedure by making a written request. The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.

2. The employer must deal with the application in a reasonable manner.

3. The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation. The eight reasons are:

a. The burden of additional costs.
b. Detrimental effect on ability to meet customer demand.
c. Inability to reorganise work among existing staff.
d. Inability to recruit additional staff.
e. Detrimental impact on quality.
f. Detrimental impact on performance.
g. Insufficiency of work during the periods the employee proposes to work.
h. Planned structural changes.

4. The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.

5. The employee can complain to an Employment Tribunal if the employer:

a. fails to deal with their application in a reasonable manner;
b. fails to notify them of the decision on their application within the decision period;
c. fails to rely on one of the statutory grounds when refusing their application;
d. bases its decision on incorrect facts; or
e. treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

6. Only one request can be made in any 12-month period.

When considering flexible working requests under the statutory scheme it is worth looking at the following ACAS documents: https://www.acas.org.uk/media/3977/Code-of-Practice-on-handling-in-a-reasonable-manner-requests-to-work-flexibly/pdf/11287_CoP5_Flexible_Working_v1_0_Accessible.pdf and https://www.acas.org.uk/media/3923/The-right-to-request-flexible-working-an-Acas-guide/pdf/The-right-to-request-flexible-working-the-Acas-guide.pdf.

When assessing a flexible working complaint under the statutory scheme, an Employment Tribunal must take the ACAS documents into account when it appears relevant.

When dealing with flexible working requests, thought also needs to be given about whether a refusal to grant the request could be discriminatory. The most common complaint from employees is sex discrimination. Here is an example taken from the ACAS guide: Linda has childcare responsibilities and asks to work part time. Her employer responds by saying that her job (as solicitor) is incapable of being done effectively by a part timer. Unless the employer can objectively justify this assertion, it is likely that Linda is being indirectly discriminated against because of her sex as more women than men are likely to combine paid employment with caring responsibilities.

The Government launched the flexible working jobs board at the start of September 2019. It lists more than 40,000 jobs, all advertising some form of flexible working. However, it has received a lukewarm reception and there is momentum for change to flexible working. Both the Fawcett Society and Pregnant Then Screwed supported a private members’ bill tabled earlier this year that would require employers to make all job roles flexible by default. Under the proposal, businesses would have to provide a sound business case for why a role could not be done flexibly.

The DWP has said the Government is in the middle of a consultation on proposals to better support parents in balancing work and family life through flexible working.

It is likely there will be changes to the flexible working legislation in time. We will report on further developments as and when they arise. If you have any questions on this article, or any other area of Employment Law or HR, please contact Rob Tice on 01332 866610 or email at rob.tice@precepthr.com.