Last reviewed 15 March 2017
In this article, Kathy Daniels, employment law author and lecturer, looks at three recent cases relating to flexible working requests and advises on the procedure that you should follow to ensure that you address any requests correctly.
An employee who has at least 26 weeks’ continuous service with your organisation can make a request for flexible working. An employee can only make one request in each 12-month period. The request can be for flexibility in the hours of work, the time of work or the place of work. Your requirement is to make a response to the request within three months of receiving it.
You can refuse a request and the grounds on which you can refuse are as follows.
The burden of additional costs.
A detrimental effect on the ability to meet customer demand.
An inability to reorganise work among existing staff.
An inability to recruit additional staff.
A detrimental impact on quality.
A detrimental impact on performance.
Insufficiency of work during the periods the employee proposes to work.
Planned structural changes.
Any other ground the Secretary of State may specify by regulations.
An employee who is not satisfied with the response to their request can bring a claim to the employment tribunal. However, the tribunal cannot disagree with the employer’s reason for refusing a request. All they can do is to ensure that the request has been fairly considered and that a valid reason has been given for a refusal. However, there is the possibility of a claim of discrimination if a request is refused, and in the following three cases we will examine both procedural and discrimination claims.
In Singh v Pennine Care NHS Foundation Trust , a nursing assistant working in a residential home requested to move from working the night shift to working days. She had worked nights for several years, but her family circumstances had changed. Her request was refused because her employer said that it was not possible to cover the shifts with existing staff and using agency staff would be too expensive. She argued that the employer had used the wrong facts as the basis for its decision because other staff were willing to swop shifts with her.
The employment tribunal found that the employer had considered her request fairly and had correctly concluded that it could not cover the shifts without considerable additional expense. Therefore, the employee’s claim that her request had not been treated fairly was rejected.
Recently, two employees have successfully claimed discrimination with reference to flexible working.
In Seville v Flybe , the employee worked as cabin crew for the airline. She worked 22 days a month and her working days were allocated by the airline each month. After having a baby, she asked to move to an 11 days a month fixed shift, saying that it was very difficult to arrange childcare when she had an unpredictable working pattern. The airline said that it could not manage this shift pattern and her request was refused.
She successfully argued that this was sex discrimination because women are more likely than men to have childcare responsibilities and hence find it difficult to work the shift pattern.
The other employee claiming discrimination was in the case of Holt v Bannatyne Fitness . The employee had a young child and had previously made a flexible working request such that she only worked Monday–Friday. A new management wanted her to work weekends, but she refused due to the difficulty with arranging childcare. She was eventually made redundant and claimed unfair dismissal and sex discrimination.
She was successful with both claims. It was an unfair dismissal because she was given no warning that her job might be made redundant. Her sex discrimination claim was successful because women are more likely to struggle with childcare arrangements than men.
How to handle a flexible working request
Given the outcome of these cases, how should you handle a request for flexible working?
Start by asking for the request in writing. The employee is legally required to make the request in writing and it is certainly helpful for you if you have total clarity about what is being requested. The employee should state what date the request is being made and what date he or she would like the requested change to take effect. They should say if they have made a previous request for flexible working, and they should say how the change would affect the business and how this could be addressed.
Meet with the employee to discuss the request. If you know that the answer to the request is “yes” and there is no need for a discussion, you do not have to meet. However, there will usually be a need to discuss the detail of the request and how it will work. You might also want more detail about the request. There is no statutory requirement to let the employee be accompanied, but it would be good practice to allow them to bring a colleague or trade union representative to the meeting.
Make a decision on the request within three months of it being made. If you refuse the request, it should be for one of the reasons already listed. Think carefully about the possibility of the employee alleging that there is any discrimination in the decision that you make. It is good practice to allow an appeal against a refusal, and this should also be completed within the three months deadline. If you are not sure whether the request really will work, you could agree to the change for a trial period only. If you do this, make it clear that you will not make any final decision until the trial period has ended.
If you agree to the change, confirm it in writing. You should also emphasise to the employee that this is a permanent contractual change (unless you agree that it is for a limited period of time) and hence the employee has no right to change back to the previous pattern of working at some time in the future. Indeed, the employee cannot make a further request for any change to the working pattern until at least 12 months has passed.