Can an employer say no to a flexible working request?

Yes they can, so long as they can show that they have given the request due consideration and haven’t discriminated.

It is not uncommon for employees returning from maternity leave to request flexible working. Agreeing to changes may cause a detriment to the business, but in today’s litigious environment, saying no can leave rise to a legal claim. What should employers do?

Background

Employee’s with 26 weeks service can make a request for a permanent contractual variation to enable them to work flexibly. Since June 2014 the statutory framework has been relaxed and an employer is now only required to deal with the application in a reasonable manner, within a 3 month time limit.

ACAS guidance exists for employers on Flexible Working.

There are 8 business grounds that an employer can refuse an employee’s request for flexible working. A request may only be refused for one of these grounds.

Two tribunal decisions give confidence to employers worried that by refusing a woman returner from maternity leave may give rise to successful tribunal action.

Whiteman v CPS Interiors Ltd and others

• In this case Ms Whiteman a designer made a FWR whilst on maternity leave seeking to reduce her hours, work from home and carry out her work after 6 p.m.  Her employer had reservations. Whilst it agreed to reduce her hours it could not accommodate the working from home as the Company said that designers worked collaboratively with each other at short notice and it would be difficult if one designer worked from home and in the evenings.
  Whilst Ms Whiteman brought a claim for breach of the legislation, the case was rejected. The tribunal stressed that there was no right to work flexibly only to ask. The tribunal emphasised that an employer was entitled to run its business as it sees it provided that business followed the ACAS Code on handling FWRs. Ms Whiteman had not been discriminated against.

Smith v Gleacher Shacklock LLP

• In this case Ms Smith worked as an executive assistance in a small investment banking firm. She made a FWR whilst on maternity leave to reduce her hours from full time to part time. She wanted to work Monday to Wednesday in the office, Thursday at home and be off Friday. Her employer refused and she claimed indirect sex discrimination. Her claim for this was rejected with the tribunal reasoning that the provision, criterion or practice (sometimes known as PCP) in question, the requirement that such roles are carried out my one full time employee did not place her at a particular disadvantage as the demands on her time and energy were pressures felt by many working parents.

Here’s our tips on dealing with a flexible working request:

1. Have a policy
2. Provide a response (inc any appeal) within the 3 month time limit set by the Code.
3. Deal with requests in a reasonable manner.
4. Ensure any reasons are one of the eight identified reasons.
5. Keep an open mind and challenge policies that roles can only ever be done on a full time basis.
6. Make sure reasons for rejecting are properly evidenced, not just a manager’s personal preference.
7. Saying we already have enough part timers will never wash – make sure you have a better reason.
8. Consider whether you should offer a trial but remember once tried its hard to go back.
9. Think about offering an alternative. Always aim to assist.
10. Bear in mind the risk of indirect sex discrimination cases. Document, evidence, ensure… prepare to explain your decisions.

If you need any assistance with any aspect of flexible working, please do not hesitate to give us a call on 01527 909436