Many employers are under a misconception that an employee has the right to change their hours and work flexibly if they want to, however, this isn’t strictly the case. Here, Employment Law and HR specialists Peninsula Business Services update us on the ins and outs of flexible working.
The rights of flexible working
The right for employees to change their hours and work flexibly is simply an exaggeration of the law and employees only have the right to request flexible working. The request must be in written format and will vary dependent on the individual. For example, the request could be to work fewer days in the week, work shorter days, or to start later and finish later. If you receive a flexible working request, you must deal with it in a reasonable manner and within a reasonable time frame.
Dealing with a request
In June 2014, there were some significant changes made to the flexible working law in terms of eligibility and procedure, which means that all employees now have a right to request flexible working. However, two elements which did remain the same was that the request to work flexibly was only open to employees that have 26 weeks’ service at the date of the request and that the employee is restricted to making only one request every 12 months.
Another main change is that the request for flexible working does not have to be in relation to the care of a child or adult who have the prescribed relationship with those individuals.
In fact, an employee can request flexible working for any reason now, whether it’s because they find it difficult to get to work on time because of traffic or because they want to play golf on a Friday afternoon.
If the employee does not meet the eligibility criteria, the request does not fall within the statutory provisions which means that you may deny the request in the first instance, if you choose to.
Where an employee does meet the criteria, the Code of Practice suggests you should:
- Speak to the employee about their request within a reasonable time frame. There’s no requirement for this to be set up as a meeting or for the employee to have a work colleague present at the meeting, although guidance suggests a reasonable employer may offer this as an option.
- Assess the advantages and disadvantages of the request.
- Inform the employee of your decision within a reasonable time frame. If the request is accepted then you should discuss when and how the changes will be implemented.
When can a request be denied?
All requests should be considered in a non-discriminatory way and can only be denied for one or more of the prescribed business reasons below:
- The burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes.
A request can be denied in the instance that you can’t accept the request or if you have an alternative arrangement to suggest to your employee. Employees no longer have a specific right to appeal a refusal, but guidance suggests that a reasonable employer would allow the opportunity to.
The entire process should be completed within three months of the date of the request.
What happens if a flexible working request is wrongly denied?
False reliance on one of the above reasons can result in a claim at tribunal so it is vital that any refusal reflects the true situation. If a tribunal finds that a request was refused and none of the specified grounds apply, then it can order that the request be reconsidered. It can also award the employee a maximum of 8 weeks’ pay.
Should you have any doubts at all about your situation and its next steps, we always recommend that you seek the advice and support of legal and employment law specialists.
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