A recent survey revealed that over half of its participants felt that flexible working has affected their career. The Workingmums Annual Survey 2017 found that whilst 42% of women in work have successfully applied to work flexibly, 47% of those feel that this has affected their career progression and 52% of those working part time feel that their working pattern means they miss out on professional opportunities such as training.
So, how should flexible working requests be handled and what could reduce dissatisfaction amongst the flexible workforce?
Employees don’t have the right to work flexibly, but they do have the right to make a request to do so provided that they:
- are an employee (not a worker);
- have at least 26 weeks’ service; and
- have not made a flexible working request in the previous 12 months.
The request should be written and dated, and should state that it is a request for flexible working made under the statutory procedure. The employee will need to explain what changes they are seeking and from when (changes can relate to hours, times or place of work), what effects the changes might have and how the effects could be dealt with.
Employers must deal with the request within three months (unless mutually agreed otherwise) and in a "reasonable manner". What constitutes ‘reasonable’ isn’t defined in law, but ACAS guidance recommends that an employer should hold a meeting with the employee to discuss the request, offer them the right to be accompanied, and allow them the opportunity to appeal any decision to reject the request.
Rejection must be on the grounds of one or more specified business reasons, which should be confirmed in writing to the employee. The specified reasons are:
- the burden of additional costs;
- inability to meet client/customer demand;
- inability to reorganise work among other employees;
- inability to recruit additional employees;
- detrimental effect on quality;
- detrimental effect on performance;
- insufficient work when the requesting employee proposes to work; and
- planned structural changes.
Employers should consider the request carefully before coming to a conclusion and are well advised to ensure that any business reasons for rejection are backed up by evidence. If you aren’t sure how the request will work in practice, you could consider implementing the change on a trial basis, or if it really isn’t possible to accommodate, consider suggesting alternatives as a compromise.
Whilst employees may bring a Tribunal claim in respect of a rejected request, the Tribunal’s role is not to question the business reasons behind the rejection, but simply to ascertain whether:
- the correct procedure was followed;
- the request was taken seriously;
- the decision was based on correct facts; and
- the reasons given were within the ones permitted under legislation.
If the employer is found to be at fault, the Tribunal can order reconsideration of the decision and can award up to eight weeks’ pay (capped, currently, at £489 per week).
The bigger risk in failing to deal properly with a flexible working request is that it could be held to be unlawful discrimination, in which case potential compensation is uncapped.
In particular, rejecting a flexible working request from a female employee might lead to a complaint of indirect sex discrimination. This is on the grounds that the rejection of a flexible working request disproportionately impacts women (as they’re more likely than men to have childcare responsibilities).
To defeat such a claim an employer needs to show its decision was objectively justified, which in essence means they must have fairly rejected the request after due consideration. Unlike claims under the flexible working legislation, tribunals will examine the commercial rationale behind the decision in detail, and it is crucial that it stands up to scrutiny.
Flexible working is increasingly becoming a feature of working life, and can assist employers in attracting and retaining talented candidates and staff. However, an often unjustified fear of changing the status quo, creating a precedent and potentially losing control of employees can hamper employers from embracing the benefits that flexible working can offer for their workforce and, ultimately, their business.
The 2017 ACAS Research Paper on flexible working for parents returning to work identifies line managers as playing a crucial part in the success of the flexible workforce. It suggests that without training and support there is a risk that line managers may not be equipped to manage flexible workers effectively, and that there is a greater risk of unconscious bias being demonstrated in relation to requests for flexibility, performance and career development opportunities. It is unsurprising then that the Workingmums Annual Survey revealed dissatisfaction amongst those who have already had their flexible working requests agreed.
If all managers are trained to effectively manage flexible workers then they are more likely to focus on output and productivity when assessing performance (rather than simply on hours worked). This ensures that those who work flexibly continue to have their careers managed but are not afraid that their working arrangement is the reason for any performance concerns. Investing in training at management level should result in a greater understanding of the benefit of a flexible workforce, which in turn should encourage better practices amongst the workforce as a whole. This will mean that professional opportunities are provided fairly to all staff, regardless of their working hours.