Flexible Working Requests
Flexible Working Request – Practical guidance for employers on handling a request
Case law has enlightened employers about the level of investigation and consideration required of them when a request is made. There are a number of key practical issues which employers need to consider and apply in order to reduce the chances of claims being made against them, and to increase the prospects of successfully defending any claim that is made.
Follow the statutory right to request procedure
The statutory procedure is highly prescriptive, but at least it is set out clearly in the legislation. When a request to work flexibly is received, the first priority for an employer must be to ensure that all time limits will be met. Meetings and deadlines for responses should be carefully diarised and the HR department consulted. If it becomes apparent that it will be impractical to meet a deadline then contingency plans should be put in place and the situation should be carefully explained to the employee and their agreement to an extension of time sought and documented. It may be possible to reschedule a meeting and avoid any liability for breach of the procedure. At the very least, being open with the employee will reduce the chances of them seeking to bring a claim. Managers should be trained on operating the procedure and employers should consider putting a written procedure in place.
Demonstrate serious consideration of the request
Before the meeting to discuss the application takes place, the employer should do some homework. First of all, the issues raised by the employee as potential effects of the new work pattern and ways to mitigate those effects should be considered. The views of line management, and where relevant, affected colleagues, should be sought, and any other alternative ways to meet the employee’s objectives should be highlighted and considered. Very often, although the initial proposal cannot be accepted for good commercial reasons, there may be other work patterns which would satisfy the needs of both parties. The better reasoned the employer’s response, the more likely it is to be accepted by the employee. The employer should also remember that in answering the request it may be necessary to consider the position under the SDA or other legislation as well. If the response cannot be objectively justified then the fact that the refusal technically conforms to the requirements of the flexible working legislation will not prevent an aggrieved employee from succeeding in a claim for sex discrimination.
Start from a “positive” perspective, seeking to overcome potential issues
In the case of Craddock v (1) Indian Queens CP School and Nursery (2) Cornwall County Council an employer was criticised for a negative approach towards an employee’s request. It appeared to the tribunal in this case that the employer had approached the issue by considering why the request could not work, rather than how the difficulties could be overcome. The tribunal in another case, Webster v Princes Soft Drinks also commented that a certain level of cost and inefficiency was “an inevitable consequence of the obligation upon employers to consider family-friendly policies”. The tribunal went on to state that, “If some inefficiency, however minor, was a bar, it would be tantamount to saying that a senior management post cannot be done on a job-share basis”. In order to avoid criticism for dwelling on minor impediments to a flexible working proposal, an employer could prepare a detailed impact assessment of the adverse consequences of the suggested working pattern, and would need to share and discuss such an impact assessment with the employee.
Consider alternatives, rather than only the initial request
In most cases an employee will propose the “best” result for them, which may not be acceptable to the employer. However, the consideration process should be wider ranging and should consider any alternatives which might be available. In many of the initial tribunal cases in this area employees have expressed a willingness to consider other possibilities and to fit in with the needs of the business. In such situations the employer needs to be particularly wary of an indirect sex discrimination claim. The wider the options that the employee is willing to consider and therefore the wider the range of options being rejected by the employer, the more difficult an employer may find it to objectively justify the refusal of the request. In addition, if an employer is reluctant to consider a permanent change to the employee’s working arrangements it may in some circumstances, be possible to agree to a temporary change or to some unpaid time off under the employee’s statutory right to time off to care for dependants or parental leave or an employer’s policy. The BIS Guidance suggests that this might be the case where, for example, an employee is going to be caring for an adult who has a terminal illness or a fluctuating condition. The employee and employer might agree under the formal procedure to a time-limited change after which the employee would revert back to the original working pattern. In this case, the employee would then have no right to make another request within a year or to complain to a tribunal if he or she subsequently wanted the change to be made permanent.
Employers should aim to ensure that flexible working requests are recorded, and preferably processed, in a way that ensures that decisions are made consistently. For larger organisations with a centralised HR function, HR should be involved in ensuring that decisions are considered consistently and that the basis of rejection of any request is also consistent with previous decisions. Where inconsistent decisions are made the employer should explain the inconsistency (for example on the basis that the organisational capacity for flexible working has been reached and that to grant any further requests would undermine the business). This is particularly important where the applicant is a different sex from those whose requests have previously been granted, or may be able to rely on some other discriminatory distinction between them and previous, successful, applicants.
Consider your organisation’s policy on dealing with requests from those employees not strictly eligible under the statutory procedure
One of the biggest issues for employers seeking to implement the statutory right to request flexible working has been the fact that only limited categories of employee are entitled to make an application. The more categories of employee become eligible, the more difficult it may become for employers to exclude requests from those not strictly entitled to apply. To do so can create unrest in the workplace and hostility from those who are not entitled to request a flexible work pattern who may feel that they are required to cover for their flexibly working colleagues. Those employers who have opted for universal eligibility to apply for flexible working report positive outcomes in terms of staff motivation, retention and morale. This remains a policy decision for individual employers, but it is an eventuality that needs to be considered in advance.
Explain the decision and the reasons fully and clearly
Although the Flexible Working Regulations give little guidance as to the content of the refusal, it is clear that an employee is entitled to receive some explanation as to why a particular application cannot be accepted. While tribunals have been extremely reluctant to consider the commercial rationale for such a decision, they remain entitled to find that a rejection has been made on the basis of “incorrect facts”, a finding which should be easier to make where the basis of the decision is unexplained.
Respond to questionnaires promptly and properly
The receipt of a sex discrimination questionnaire is not to be taken lightly. The inadequate or evasive response to a questionnaire can change the course of litigation. For example in Webster v Princes Soft Drinks, the tribunal drew adverse inferences from the failure to respond properly to a questionnaire, which was material to the ultimate finding of indirect sex discrimination.
Underlying the need to respond adequately to questionnaires and consistently to flexible working applications, is the practical need to obtain and keep proper diversity information. Failing to monitor the proportions of different groups within the workforce, thereby failing to adequately record the respective needs and treatment of those groups will inevitably undermine the employer’s ability to respond to a questionnaire. Of course, such data may be kept in anonymised form for data protection reasons, but should still be collected.
Avoid “technicality” points
The outright rejection of a flexible working application because, for example, it is undated or is made before the birth of a child is a high risk strategy. The proper approach is simply to inform the employee of the technical fault and advise the employee to resubmit an amended application. When a valid request is then submitted it should be properly considered, rather than attempting to rely on the defence that a previous application was submitted less than a year before. To do so risks a finding of fault under the Flexible Working Regulations, but more importantly could lead to a claim under SDA. Employees can reasonably expect help and support from the employer in the process, and an outright rejection on a technical point is unlikely to be looked on favourably either by the employee or by a tribunal.
Consider carefully whether a role cannot be performed flexibly and whether (and how) that belief is justifiable
Many organisations have roles which they consider could not be performed on a flexible basis. Often such a contention does not survive critical analysis and may not be capable of being objectively justified. It is important to consider whether the belief that a role cannot be performed on a flexible basis is due to stereotypes, prejudice or genuine business need. Cost may be an issue, but in Webster v Princes Soft Drinks the tribunal acknowledged that employers will have to put up with a certain level of cost and inefficiency for the sake of improving family-friendly policies and practices. If an organisation does operate a particular role which simply would not work on a flexible basis then the rejection of a request could be objectively justified, but it would certainly be unusual. It is vital to understand that the test is not simply whether a rejection of a request could reasonably fall within one of the categories listed in section 80G of ERA 1996. The far more important, and costly question is whether the rejection of the request could put a particular group at a disadvantage, and if so whether that disadvantage can be objectively justified. The BIS Guidance states that employers should consider each application objectively, and not attempt to judge whether one applicant’s need for flexible working is greater than another’s. What this does not acknowledge, however, is that some employees may have a stronger claim against an employer for a rejection of their request so employers receiving requests from several employees working in one department for example, will need to proceed cautiously in weighing them up against each other.