Flexible working: do employers have to agree?

Many employers are very wary of refusing requests from employees to work reduced hours.

However, a couple of very recent Employment Tribunal (ET) cases have proven that refusals can be accepted if the procedures are robust enough.

So, what are the employer’s obligations?

An employer must consider any requests for flexible working as long as the employee has 26 weeks’ employment. The criteria are:

Requests should be in writing stating the date of the request and whether any previous application has been made and the date of that application. Requests and appeals must be considered and decided upon within three months of the receipt of the request. Employers must have a sound business reason for rejecting any request. Employees can only make one request in any 12 month period.

The Acas guidance gives the following procedural advice.

Once a request has been received the employee should arrange a meeting to discuss the request, this should be done as soon as possible, this is not a statutory requirement but is good practice.

This meeting can provide an opportunity to see what changes the employee is asking for and reasons for the change, although the employee may not wish to say why it also allows any compromise to be explored. Although not a statutory requirement, it would be good practice to allow the employee to be accompanied at a meeting by a work colleague or trade union representative.

The law requires the process to be completed within three months of the request being received, this includes any appeals.

Any request that is accepted will make a permanent change to the employment contract, so if the employee wants a temporary change then an agreement may be reached together with any comprise if the original request cannot be accommodated.

However, if the employer is willing to grant a request then meeting may not be necessary, but it still may be useful to discuss a request to ensure that the proposal made by the employee is the best solution for both employer and employee.

Employers should consider requests in a reasonable manner and can only refuse them if there is a business reasons for doing so, this reason must be from the following list:

the burden of additional costs an inability to reorganise work amongst existing staff an inability to recruit additional staff a detrimental impact on quality a detrimental impact on performance detrimental effect on ability to meet customer demand insufficient work for the periods the employee proposes to work a planned structural changes to the business

So, to the two cases:

Whiteman v CPS Interiors Ltd

Mrs Whiteman’s employer agreed to a request to work reduced hours on Mrs Whiteman’s return from maternity leave. However, they did not agree to Mrs Whiteman’s request to work in the evenings from home. Their reason for refusal of this request was that the job she did was of a collaborative nature and the need to make alterations at short notice.

Did they handle the request well? They followed the Acas code of practice and, according to the ET:

held a meeting with her to discuss the request wrote to her explaining why they refused her request offered her an appeal held an appeal meeting chaired by different managers wrote to her explaining why they refused her appeal offered her a formal grievance hearing after she resigned

As a result of this, Mrs Whiteman claimed breach of the Flexible Working Legislation and indirect sex discrimination.

Her claim under the Flexible Working Legislation failed because the procedures had been followed with the ET stating that it is sufficient for an employer to say "Granting this request would not be in the best interests of our business; we believe what has been requested would be detrimental to our business in that, at best, it would cause us minor but more than minimal inconvenience."

The claim for indirect sex discrimination also failed because there was no evidence that women were placed at a particular disadvantage by the practice of not allowing homeworking.

2 Smith v Gleacher Shacklock LLPan ET

Mrs Smith, a single parent, submitted an application for flexible working. During the course of the discussions, many options were discussed but an agreement could not be reached, so Mrs Smith claimed indirect sex discrimination.

During the case, Mrs Smith admitted that she would be better off financially working and engaging childcare and she would be no more disadvantaged than other parents who had to feed and put their children to bed every evening.

Whereas the employer, Gleacher Shacklock LLP, justified their policy by providing detailed practical examples of the potential problems with part-time working in this specific role.

The tribunal concluded that the employer's PCP had the legitimate aim of "ensuring that the employers’ partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers". Further the ET found the employer's means were found to be proportionate, with the "very small" disadvantage caused to the claimant outweighed by the needs of the business.

The ET ruled it was not indirect sex discrimination for a small in firm to require a single-parent mother to work full time as an executive secretary.

Caution

Both cases were heard at Employment Tribunals which may be appealed. Even if the cases are not appealed, it does not mean that employers should consider requests for flexible working lightly. They must ensure they follow the Acas code of practice to the letter.