As specialist employment lawyers, we regularly see the same mistakes being made by employers when dealing with flexible working requests. We have set out our thoughts below on the most common pitfalls:
1. If a flexible working request has been legitimately made, an employer should be relying on one (or more) of the prescribed business reasons if it rejects the request. Unfortunately, however, employers often overlook these business reasons and do not specify in the flexible working request outcome which it is relying on. The eight business reasons include the (1) burden of additional costs; (2) detrimental effect on the ability to meet customer demand; (3) inability to reorganise work amongst existing staff; (4) inability to recruit additional staff; (5) detrimental impact on quality; (6) detrimental impact on performance; (7) insufficiency of work during the periods the employee proposes to work; and (8) planned changes. When refusing a request, an employer should be relying on one or more of these business grounds.
2. In circumstances where an employee is disabled for the purposes of the Equality Act 2010 (the employee has a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities), an employer needs to carefully consider its duty to make reasonable adjustments to the employee’s working practices. The obligation on an employer to make reasonable adjustments requires an analysis on a case-by-case basis to remove, reduce or prevent obstacles for the disabled employee in question.
3. When a flexible working request is approved, the effect of approving the request will be to vary the employee’s terms and conditions of employment (unless specifically agreed otherwise). For the employer, this means that they should document the changes in writing so that it is clear on the flexible working arrangements it is agreeing to. For the employee, this means that should they wish to make any future changes, or revert to their former working arrangement, they would need to make another flexible working request to change their terms. There is no prohibition for an employee requesting a temporary change. It is, however, important to remember that an employee can only make one request for flexible working in any 12 month period.
If you have questions about flexible working and how it may affect or benefit your business, get in touch with us on hello@tandonhildebrand.com.
