9th October 2019

INFORMATION UPDATE

 Issue No.  2019/16

 Sentient
              

 

FLEXIBLE WORKING – AN EMPLOYERS’ PERSPECTIVE

You may be aware that this week is National Work Life Week
 
So, I hear you ask: What is National Work Life Week?
National Work Life Week is an annual initiative of Working Families (a UK based charity, helping working parents and carers – and their employers – find a better balance between responsibilities at home and in the workplace).  NWLW aims to highlight for both employers and employees the need to consider wellbeing and work-life balance.
 
Employees, irrespective of their gender, may have other responsibilities, specifically looking after children and/or in some cases elderly relatives, and because of this, some workers may need some form of flexible working to aid their work-life balance.
 
NWLW advocates to employers that by offering flexible working options to their staff, it could assist in productivity.  In that, a flexible working arrangement could reduce stress levels and/or give greater autonomy to enable workers to better manage family and carer responsibilities. 
 
Consequently, NWLW may trigger a number of employees to think about their personal circumstance which in turn may cause them to present their employer with a proposal to consider an alternative flexible working arrangement.  In the circumstances, we believe it is useful to remind employers of the requirement to consider any flexible working application and to reassure them that there are strict controls, meaning employees cannot make unreasonable demands that must be accommodated.
 
FLEXIBLE WORKING - THE PROCEDURE
Employees (but not employee shareholders), with 26 weeks’ service with the employer, can make up to one written request every year, to change their working hours, and/or place of work (e.g. working from home for example). The employee’s written request should say:
(i) their current working pattern, and their proposed working pattern;
(ii)  what effect, if any, they think the requested change would have on the employer    and how, in their opinion, any such effect might be dealt with; and
(ii) a statement that this is a statutory request; and
(iii) if and when they have made a previous application for flexible working.
 
Historically, the request had to be on the grounds that it was to help with bringing up their child or caring for an elderly relative, but this is no longer a requirement.  A request can be for any reason.
 
Upon receipt of a request, the employer will need to deal with it within three months.  This means considering the request and if necessary having a meeting to discuss the request with the employee (who is allowed to be accompanied by a work colleague).  An employer should consider the request carefully, looking at the benefits of the requested changes in working conditions for the employee whilst weighed against any adverse business impact of implementing the changes.
 
Legitimate 'Turn Downs' 
The employer can refuse the employee’s request for one (or more) of the following business reason:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • a detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to your business

The decision, once made, should be communicated to the employee as soon as possible in writing to avoid future confusion on what was decided.
 
If the employee’s request is accepted, or accepted with modifications, a discussion with the employee is usually required on how and when the changes might best be implemented.
 
If the employee’s request is rejected, it is good practice to discuss the reasoning behind the decision to reject the application with the employee; which also provides the opportunity for the employee to reveal new information or an omission in following a reasonable procedure when considering the application. You should allow your employee the opportunity to appeal the decision.
 
ENFORCEMENT
Whilst an employee could bring a claim before the Employment Tribunal for breach of the Flexible Working Regulations, a tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks' pay (currently capped at £525 per week).  However, an employee might also claim that the decision to refuse their request is a discriminatory act, and/or a fundamental breach resulting in the employee resigning and claiming constructive dismissal.  Therefore, an employer is encouraged to take professional advice before making a decision to reject an employee’s application for flexible working.


 

 

 

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"capable of perception"

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The advice and comment in this update is not meant to be an authoritative statement of law. The articles and summaries should not be applied to any specific set of facts and circumstances without seeking further advice. Whilst every care is taken to ensure that the content is correct Sentient cannot accept responsibility for the accuracy of statements made nor the result of any actions taken by individuals after reading such.

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