Flexible working - there's no need to bend the rules!

Dear Auntie

I am the HR Manager of a small IT company. One of our systems administrators has submitted a request to work flexibly. Instead of working on weekends, she wants to work 5 as opposed to 3 days a week. We have recently paid for the employee to participate in an extensive training programme to enable her to undertake the role. The systems administrator’s role includes undertaking maintenance work of the computer system during weekends to ensure that all IT equipment is working fully during trading hours.

I think it is unlikely that we would be able to agree to our employee’s request, as we found it extremely difficult to recruit an appropriate systems administrator. As the employee’s training programme was extremely expensive and cost more than we had budgeted for, we will not be able to afford to train anybody else to take on the role. I have spoken to our other systems administrator who works 5 days a week, but he is not willing to work weekends.

What steps can I take to minimise our potential exposure if we have to refuse the employee’s request?

Yours sincerely

Flustered about flexible working

 

Dear Flustered

There is a misconception that employees now have the right to work flexibly. That is not the case. Employees have the right to request to work flexibly and to have their application considered properly by their employer, who must establish whether the desired work pattern can be accommodated within the needs of the business. The law recognises that there will be circumstances in which an employer will not be able to accept a request for flexible working due to the needs of the business.

Employee’s eligibility

Before you consider the employee’s application to work flexibly, you should first consider whether he or she is eligible to make a request. In order to be eligible, he or she must:

• Be an employee;

• Have a child under the age of 6, or under the age of 18 if the child is disabled;

• Make the request no later than 2 weeks before the child’s 6th or 18th birthday;

• Have responsibility for the upbringing of the child and be making the application to enable them to care for the child;

• Be the mother, adopter, guardian or foster parent of the child or married to or the partner of the child’s mother, father, adopter, guardian or foster parent;

• Have worked for his/her employer continuously for 26 weeks at the date the application is made; and

• Not have made another application to work flexibly during the past 12 months.

A significant point is that the application can only be made to help the employee care for the child. For example, to enable the employee to spend more time with his/her children or to help with dropping the child off at school. Applications to work flexibly cannot be made for any other purpose.

Procedure for considering request

If the employee is eligible to make the request to work flexibly, then best practice dictates that you should acknowledge receipt of the request. You must then meet with the employee to discuss the application within 28 days of receiving the request to work flexibly. The employee has the right to be accompanied at the meeting by a companion of his/her choice who is a worker employed by you. The companion can address the meeting and confer with the employee during it, but he or she cannot answer questions on the employee’s behalf. At the meeting, you should discuss the desired work pattern with the employee and consider how it might be accommodated. If the original working pattern cannot be accommodated, you should use the meeting to see whether any alternative working arrangement may be appropriate. You must write to the employee to inform them of your decision within 14 days after the date of the meeting. That letter should make reference to the employee’s right to appeal against the decision.

If your business is unable to accommodate the employee’s request to work flexibly, when you write to him/her notifying him/her of your decision, you must ensure that the letter:

• States the business ground[s] for refusing the application;

• Explains why the business grounds apply in the employee’s case;

• Provides details of the employee’s right to appeal; and

• Is dated.

The legitimate business grounds for refusing an application to work flexibly are:

• Burden of additional costs;

• Detrimental effect on ability to meet customer demand;

• Inability to re-organise work amongst existing staff;

• Inability to recruit additional staff;

• Detrimental impact on quality;

• Detrimental impact on performance;

• Insufficiency of work during the periods the employee proposes to work;

• Planned structural changes.

Any facts which you refer to in the explanatory section of your letter must be accurate and you should ensure that you are able to back up any such facts, should they subsequently be disputed. If your decision to reject the application is based on incorrect facts, the employee could make a complaint to an Employment Tribunal or ask ACAS to arbitrate the dispute.

Whilst the Tribunal does not have the power to question an employer’s business reasons for declining a request, they will want to see evidence of any facts relied upon to reject the application. The Tribunal will also check that the employer has provided the employee with a sufficient explanation as to why the business ground applies to the specific circumstances of the employee’s application.

On the basis of the information provided to us, you may be able to rely on the business grounds of ‘burden of additional costs’ and ‘inability to recruit additional staff’ to reject the application to work flexibly. The written explanation which you give to the employee could refer to the following facts:

The role of weekend administrator is vital to the running of the company. It is essential that the company’s IT equipment is operational from the moment staff arrive at work on a Monday morning and that maintenance occurs out of core hours, so as to minimise any disruption to the business. The company encountered severe difficulties trying to fill the systems administrator post. Although the vacancy was advertised on a number of occasions in the trade press, no suitable applicant was found.

As the employee expressed an interest and agreed to receive the necessary training, the company agreed to increase its annual training budget specifically to fund the employee’s course. At the time that the employee expressed an interest in the job, the HR Director made it clear to her that a necessary part of the job was to fulfil the weekend’s systems administrator’s duties. Unfortunately, the company does not presently have the budget or resources to train anyone else to perform the systems administrator’s role.

The company has asked the other systems administrator whether he would be willing to change his working hours to accommodate the employee’s request, but he has refused to do so.

As you will have provided the employee with legitimate business grounds for refusing his/her application, and the explanation sets out why the business grounds apply in the employee’s specific circumstances, this should minimise the risk, as far as possible, of the employee instituting proceedings against your company. Statistics have shown that whilst an employee may be disappointed that their request to work flexibly has been turned down, if the company has explained the reasons for rejecting the request and can establish that it has properly considered the request, the employee is less likely to issue Tribunal proceedings against his/her employer.

Appeal Procedure

If the employee wishes to appeal, he/she must appeal in writing within 14 days of receiving your decision. If the employee appeals, the appeal meeting must be held within 14 days of receipt of the grounds of appeal. The employee should be given the opportunity to be accompanied to the appeal meeting by a companion of his/her choice who is a worker employed by you. You must write to the employee notifying them of your decision within 14 days of the appeal meeting.

Documentation

We would recommend that you document the process that you follow in detail, as you may need to rely on your notes as evidence in the event that the employee challenges your decision and/or issues proceedings against the Company.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.