Handling Requests for Flexible Working guide

Out-Law Guide | 01 Jun 2020 | 12:00 am |

A risk management programme on handling requests to work flexibly - a right which was extended from 30 June 2014 to all employees with 26 weeks’ continuous service. 
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  • Transcript

    Hello, and welcome to this Risk Management Programme on handling requests for flexible working. The law changed in this area on 30 June 2014 extending the right to request flexible working to any employee with 26 weeks' continuous service and they can now apply for any reason which is good news for employees obviously. The flexibility in the new regime is also good news for employers because the new law dispenses with the statutory procedure for consideration of flexible working requests - which was criticised for being too administratively burdensome - replacing it with a duty on employers to deal with requests in a reasonable manner and shortly we will see what that means in practice where we'll see a demonstration of a meeting between an employee and her line manager. It shows a request that’s handled badly with the manager making the classic mistakes and then you will see the same meeting again but this time handled by the manager in the correct way. The legislation specifically states that an employer can only reject the request if one or more of eight specified business grounds applies - very wide ranging - but the overriding duty remains to handle the request in a reasonable manner. In most cases the employer will need to discuss the request with the employee and so in most cases that will mean setting up a meeting. Joe McMorrow takes it up:

    Joe McMorrow: "In preparation for the meeting it's a good idea to really think carefully about the request - make some initial enquiries - it's always best to think creatively to try and accommodate the request if at all possible. But in thinking about the request it's important not to make any presumptions without first speaking to the employee. At the meeting itself it's a statutory requirement, and when inviting the employee to attend the meeting it's a good opportunity to remind them of their right to be accompanied by a trade union representative or a colleague. At the meeting itself it's a chance to find out more information from the employee and to consider the options available and it's also a chance to give them an opportunity to gauge their reaction to any alternative solutions that you can think of – it will be your last chance to do that before making your decision."

    Jon Fisher:  "What we have found as being one of the real dangers with flexible working requests is that managers become fixated with the flexible working procedures and adopt almost a tick-box approach and they forget that in this context particularly indirect discrimination is relevant as well.  The flexible working procedures just impose an additional hurdle which employers must get over.  In their discrimination particularly indirect sex discrimination applies here because of course ordinarily the tribunals will regard women as bearing a disproportionate child burden and therefore anything which impacts on her ability to look after children and be it at home or is indirectly discriminatory on the grounds of sex.  And particularly relevant here is the way that tribunal’s approach indirect discriminations cases.  They actually get involved and look at whether it's what the employer’s done is a proportionate means of achieving a legitimate aim and the tribunal will make their own decision on that.  They will get involved in the business rational and they will examine it and decide whether they agree with it or not.  It’s not like an unfair dismissal claim where they will look at the reasonable or responses.  They will actually make their own decision.  So there is a famous case a few years ago involving BA for example where BA had said that women pilots had to work at least 75% of fulltime hours for various reasons which they thought were very good health and safety reasons.  The Tribunal got involved and said “no, actually we don’t agree with you, we don’t think that’s right and therefore that’s indirectly discriminatory.  So it is a tough hurdle for managers to get over and what they need to look at is not just the business case but the effect on the individual employee.”

    Well that last point is worth emphasising.  The effect of refusing a request will have an impact on the employee and the trap Jon was highlighting is caused by the fact that the flexible working legislation on the one hand is drafted very differently to the discrimination legislation on the other. The flexible working legislation provides 8 statutory grounds for refusing a request and they draft it very widely – managers who want to refuse a request find it very easy to point to one or more of those grounds.  But therein lies the trap Jon was describing. That approach, very much focused on the business case, ignores the individual's needs and is potentially very risky.  That is the first trap for the unwary line manager.  The second is a classic mistake – managers wrongly assuming that that fair treatment means same treatment:

    Jon Fisher:  "Another trap for the unwary particularly as we are talking about discrimination laws here is that managers thinking that if they treat everybody the same then they are going to be on safe ground, and that is not the case because of the way in which indirect discrimination works.  If you apply one rule equally to all people it can still have a disproportionate effect on certain groups such as for example women when it comes to child care arrangements.  So managers do need to look at each individual case on its merits and they can't simply approach things on the basis of we’ve turned down similar requests from other members of the team therefore we are going to turn down this third one because it is going to cause too many problems from the team morale point of view.  They need to look at the individual circumstances and the effect on the individual and see whether that justifies bending the normal rules in order to accommodate the employees needs.”

    Joe McMorrow:  "When a request comes in it should be considered on its own merits. An employer should always avoid having a blanket rule to reject requests. So even if you've had a similar request in the past it doesn't mean that you have to make the same decision again. It might be that the company has moved on and is in a better position to allow the request, or their might be alternative solutions which weren't available in the past that are available now. There is the example of a Muslim worker who had asked to work flexibly on a Friday in order to allow them to attend the mosque and that case ended up in an employment tribunal because the employer hadn't properly considered the request. It had just based its decision on previous requests which had been refused and the Muslim worker won her case. She tied it in to discrimination on grounds of religious belief and the employer was unable to say that it followed a proper process and was unsuccessful and the Muslim worker won her case in that instance."

    So, lets us now have a look at the meeting taking place the request you are about to see is being made to me by an employee , Anne and the request has come to me as her line manager and I have set up the meeting which you heard Joe McMorrow talking about earlier on in this program.  In the first clip we will show you is a demonstration of how the meeting could be handled badly.  I make the two classic mistakes first, assuming that the business cannot cope with the change and I go into the meeting with that mindset and secondly, I have got the misconceived notion that fairness means treating everybody in the team in exactly the same way.  In the second clip you will see the same meeting but this time handled properly.

    MEETING 1 – HANDLED BADLY

    Joe: Hi Anne how are you?

    Anne: I'm fine thank you Joe.

    Joe:  Now you have made a request to change your working hours under the Flexible Work Policy.  Is that right?

    Anne: Yes.  I think I mentioned it to you a few weeks ago and you said go to HR which I have done.  I spoke to them and they said I needed to put it in writing so it could be considered formally and I hope I got the right application form and I hope you received it.

    Joe: Yes, you have used the right form Anne.  You have used the right form and I can see you have spent some time completing the application.  I will go through that with you in just a minute but can I just check you got my letter inviting you to this meeting and I set out in the letter a right you have got to be accompanied but I see you are on your own today.

    Anne: Well I did not think it was necessary because I was not expecting this to be especially contentious.

    Joe: No, well I do not think it will be contentious, Anne.  Not for a minute but it is just a right that you have and I just wanted to make sure that you were aware of it because I am very keen to follow the procedure properly here.  Ok well let us have a look at your application then and I think it is to do with your daughter Olivia.

    Anne: Yes

    Joe: Who is aged 5.  Now currently you are working Monday to Friday 9 to 5 and you are spending most of your time on the main site.  Occasionally you go to the Greenwell site but most of the time on the main site.  OK you say there are 6 in the team and in fact it is very soon going to be 5 in the team because Kate is leaving at the end of the month.  She has handed in her notice and which is unfortunate timing I am afraid and you have got 9 years service.  You work most of the time with Julia in the projects team and how is the design project going.

    Anne: It is going very well actually.  We have had to change one or two of the colours but the main design has gone down really well.

    Joe: Excellent good pleased to hear that.  Now you wanted to change to a starting time of 10 o'clock and a finishing time of 3 o'clock every day that is a 3 hour drop every day of the week.

    Anne: Yes.

    Joe: You say it is acceptable because Julia should be able to cover for you when you are not there.

    Anne: Yes we talked about it and she is very happy with that.

    Joe: She is not really covering for you though is she?

    Anne: Well I suppose that is right.

    Joe: Now you say you are making the application because of child care reasons.  What are the problems there?

    Anne: Well, it is my daughter Olivia she has just started at a new school which is 5 miles away from us.

    Joe: Right.

    Anne: And although there is a bus service I am not happy about the bus arrangement and I think I need to be taking her in the morning and collecting her at the end of the day and my current working hours do not allow me to do that.

    Joe: So how are you managing at the moment?

    Anne: Well with difficulty because it is a mixture of the bus, a friend who is helping and on Fridays my husband works at home so he can take her and pick her up but even that is going to change soon because he is switching offices.  So it is, it is a real worry.

    Joe: Is there anybody else that you can call on for help?

    Anne: Well not on a permanent basis. No.

    Joe: Right and you mention the bus.  Is the bus that bad?

    Anne: Well she is too young.  I am not happy to drop her at a bus stop and I need to be there to take her and to be there at the end of the day.

    Joe:  Right now 10 til 3 are the hours that you are wanting.  Frankly I am not sure how that is going to go down with the rest of the team Anne.  10 til 3.

    Anne: Well what do you mean?

    Joe: Well my worry is, well one of the worries I have got a number.  I think it will generate some ill-feeling if I were to let this application go through.

    Anne: But why?

    Joe:  Well there are two others in the team but I do not know whether you know this but two other members of the team.  It was John and Sally have made applications of a similar nature to you.  Sally is wanting to go part-time, John is wanting to reduce his hours as he is winding down towards retirement and I refused both of their applications so I think in fairness to them I have got to think about fairness, consistent treatment, treating everybody the same.

    Anne: I don't.

    Joe: I am inclined to say No to you as well.

    Anne: I do not follow you.  So what reasons did you give them?

    Joe: Well pretty much the same reasons that I am giving to you Anne which is that we are very stretched at the moment.  We have got a relatively small team and the work is piling in and we are very busy and I just cannot afford to take any risks when it comes to service levels.  That is the worry that I have.

    Anne: Well I do not know about their reasons, Sally and John but I think I have a strong case – don't you?

    Joe: You do have good reasons I do not question the reasons that you set out in the application for a minute and I suppose that amounts to a strong case but circumstances dictate and I have to think about the interests of the business.  That is my priority.  That is what my job is all about so I have little option really, Anne.

    Anne: Well surely there are ways around it.  I mean I would just start a little bit late and finish a little bit early.  I would still be there for the five days.  It only really me and Julia and the two of us have talked about it.  I promise you that we are confident that we can manage.  I am happy to do my holidays at a different time from her, to do my lunches earlier or later so we are not out of the office at the same time.  All those things.

    Joe It is a case and I think it is the thin edge of the wedge and if I say "yes" to your application then the others understandably would be coming to me saying look you have said "yes" to Anne then can you not say "yes to me as well.  As far as I am concerned the business is the priority and I cannot afford to take any risks and in fairness to the others I have refused two applications so I need to be refusing yours as well if I am going to be fair to them.

    Anne:  But that does not sound fair to me, Joe.

    Joe: I am keen to follow the procedure Anne.  You have completed the application form, I will complete this part of the procedure which you can see sets out the reasons that I need to take account of and you will see there are a number of them here and most of them apply, if not all of them actually.  Detrimental affect on the ability to meet customer demand, inability to reorganise work among existing staff - that is certainly going to be difficult - inability to recruit additional staff, detrimental impact on quality and detrimental impact on performance. I mean these are serious considerations.  In fairness these are things that I do need to take into account when considering your application as I took them into account when considering Sally's and John's applications as well and I think most of those apply in this case to be honest.

    Anne:  So the answer is “no” then?

    Joe:  I am afraid it is Anne. Yes, I’m sorry.  I’ll complete Form C, I will put my reasons in writing for you and I will let you have those.  I am sorry I can’t do more than that I am afraid.

    Anne: Okay

    Joe: Okay, thanks Anne

    MEETING 2 – HANDLED CORRECTLY

    Joe: Hi Anne how are you?

    Anne: Fine thank you Joe.

    Joe: Now I gather you were making a request for flexible working?

    Anne: Yes I am that is right.

    Joe:  A request to change hours?

    Anne:  Yes.  I think I mentioned it to you a few weeks ago and you said to speak to HR which I have done.  They said I needed to put it in writing so that it could be considered formally so I have done that.  It is to do with my daughter Olivia moving schools and I need to change my hours so I got the application form.  I hope it is the right one and I hope you have received it?

    Joe:  Yes it is the right form and you have filled it in quite properly, Anne.  Just one thing that I want to check with you though.  Did you get my letter inviting you to this meeting?

    Anne: Yes.

    Joe:  Right because in the letter it sets out a right that you have to be accompanied at this meeting, now I see you are here on your own.

    Anne:  Yes I did not think it was necessary because I was not expecting anything to be especially contentious.

    Joe:   No, I do not think it will be contentious for a minute.  It is just a right that you have got and I wanted to check that you were aware of that and if you are quite happy to be here on your own then that is no problem at all.  Okay, well let us have a look at this application Anne because you have certainly given it plenty of thought.

    Anne: Well I have because it is very important to me.

    Joe:  Yes absolutely.  So it is to do with your daughter Olivia.  Now then, you are currently working Monday to Friday 9 to 5.  Okay.  Most of the time you are spending on the main site. You occasionally go over to the Greenwell site but mostly the time is on the main site.

    Anne: Yes.

    Joe:  Fine.  Currently we have got six people in the team actually Anne that is going to be five very soon because Kate served her notice in and in fact she will be leaving us at the end of this month.  Yes not good timing really.  You have got 9 years service and you spend most of your time working with Julia in the design and projects team.

    Anne:  Yes.

    Joe:  Okay.  How is that going incidentally?

    Anne: It is going very well thank you, very well.  We have had to change a couple of the colours.

    Joe:  Right.

    Anne: But the main design has gone down really well.

    Joe: Good, excellent.  Now although you are currently working 9 to 5 you are wanting to change your hours so that you start at 10 o'clock every morning and finish at 3?

    Anne: Yes.

    Joe: Okay.  Now you have gone on to say that you think that this should be acceptable and not much of a problem because Julia will be able to cover for you.  She is not really covering though Anne, is she?

    Anne: Well by cover I mean if there was work to be done for instance between 9 and 10 and 3 and 5 then she would be there so the fort would be manned, so to speak.

    Joe: Yes.

    Anne: And because it is really just the two of us on this project and I did not see that it could really impact greatly on the rest of the team.

    Joe:  Right.  Okay, well we will come back to that because it is certainly not straightforward.  It may be possible but it is not straightforward.

    Anne: So you see a problem?

    Joe: Potentially yes.  I am going to look at this carefully and look at your application and weigh that up against the impact that it is likely to have on the team and the work that needs doing.  I mean that is what this meeting is for.  Just to understand both sides of the equation if you like.  Now just so I can fully understand the situation why do you need to change your hours?  It is to do with Olivia isn't it?

    Anne: Yes.  Starting at this new school and it is five miles away from where we live so although there is a bus service I am not happy with that and I want to be able to take her to school in the morning and collect her at the end of the day.  It is already quite unsettling for her and my current working hours do not allow me to do that.

    Joe:  Right so how are you managing at the moment?

    Anne: Well it is not easy it is a mixture of things.  There’s the bus and I have a friend who is helping me and on a Friday my husband works at home so he has been taking her and picking her up but then that situation is probably going to change soon because he is moving offices.

    Joe: Right I see.  But if we go with this new arrangement that would work Okay for you?

    Anne: Yes, it would be perfect.

    Joe:  Right okay.  Well I need to as I say I need to consider the impact on the rest of the team so shortly we are going to have a team of five.  So there is you and Julia of course, there is also Matthew, John and Sally.  Matthew is spending most of his time these days on the NewCo project and I think for the foreseeable future I think all his time is going to be spent on that.  Sally of course is part-time.

    Anne:  Right but I do not know if she is part-time but I do not know what hours she does exactly.

    Joe: No I think, I’m just trying to think what Sally's hours are.  I think she works a four day week.  I will need to check on that, Anne, but essentially I know she is part-time and what that means is given Matthew's situation, and that the fact that Kate is going to be leaving soon, it means we are pretty thin on the ground which is the difficulty.  That is why this is not straightforward.

    Anne: Well I know but I am not asking to work fewer days I am just asking to work fewer hours.

    Joe:  Yes.

    Anne: And Julia is quite happy with that.

    Joe: Well Julia is very accommodating and I am sure that she would do everything that she could do to help you but I have got to look at service levels.  I need to look at the work that the team is producing.  I have got to make sure that there is no impact on the quality – so that quality does not suffer.  It may be that John is able to cover on those occasions which inevitably will happen when both you and Julia are not able to, are not around.  John might be able to do some covering and I will look into that but I will need to speak to him.

    Anne: Thank you.

    Joe:  Also, it may be that we will be able to recruit a replacement for Kate quite soon – that is what we are hoping but that has not happened yet.

    Anne:  Well, I realise it is not just about me and that is very clear from the way the policy is written that is very obvious.

    Joe:  Yes.

    Anne: And I do feel I have very good reasons and I thought that would count for a lot.

    Joe:  Well, you certainly do have good reasons and if you had put this application in six months ago for example I think it would have been very straightforward and it would have been okay.  It may be possible now it is just that I have got to look carefully at the situation and then make a decision when I have got al the information available to me.

    Anne:  Okay, I see.  Well I spoke to Sally yesterday and apparently her request to go part-time just went through with no problem.

    Joe:  Yes it did.  I handled that request and it did go through without any problem but at that time we did have some slack in the system.  Kate, obviously, at that time Kate was not leaving in fact she had just increased her hours so it was an easier situation and every case is handled on its own merits and for her application the business case was not as difficult as it is now so.

    Anne:  OK so you cannot say one way or the other at the moment?

    Joe:  I can’t at the moment but I will certainly explore the options.  I am not going to give you a flat refusal certainly worst case scenario I think is that we give you a trial period and see how it works for say two or three months and at the end of that period someone can review it and see what happens.

    Anne: And if it appeared to be working okay?

    Joe:  If it appeared to be working okay there would be a formal change in your contract.  You would get a new contract written up with your new hours.  Of course, you are reducing your hours so your pay would be reduced accordingly.

    Anne:  Of course.

    Joe:  Okay, well leave it with me Anne and, as I say, I will have a look at the situation and I will come back to you.

    Anne: Great.  Thank you.

    So, that meeting ended with both sides agreeing to a trial period and we will finish with that point because it is an important one.  A good tip is to go for a trial period if you are ever in any doubt at all about whether the request will work.  If a manager is minded to refuse a request but suspects the employee is going to particularly unhappy with that decision, and perhaps raise a grievance or a tribunal claim, then the fact you offered a trial will stand you in good stead.  Basically, you can say to the employee, and to the tribunal if it comes to that, that you really didn't think the business could accommodate the request and by offering the trial you then proved that to be the case.  Provided it's not a sham and you can support that conclusion, then you should be in a strong position.  Also, of course, it's more likely the employee will accept the decision if they have seen their manager at least trying to accommodate the request.

    That's it.  Good bye.

    End.