Addressing Flexible Working Requests

Addressing Flexible Working Requests Gemma Clark Associate

Adam Morris Solicitor

Today’s objectives •

Understand the legal position in respect of flexible working requests

•

Know how to assess flexible working requests fairly and consistently

•

Discuss recent and proposed changes to flexible working

•

Practise responding to potential flexible working scenarios

How experienced are you in handling flexible working requests?

What are flexible working requests?

Flexible working requests are formal applications made by employees to change their working arrangements.

In pairs, list five flexible working requests you’ve come across or consider could be made.

You have 2 Minutes

Hybrid Working – Important Differences • A type of flexible working • Narrower than the statutory right to request flexible working • Different process

• Informal change to terms of employment

Who is entitled to make a flexible working request?

Who can make formal flexible working requests?

All employees have a legal right to request a formal flexible working from day one of their employment, provided they meet the eligibility criteria.

It should: • Be done in writing • Clearly state that it is a statutory flexible working request • Follow any other requirements of a company’s internal policy

How many formal flexible working requests can an employee make?

Why It Matters For employees: Better work-life balance, reduce stress, increase job satisfaction. Greater choice in roles.

For employers: Boost productivity, enhance employee engagement, foster a more inclusive and diverse workplace, help with recruitment and encourage long-term commitment and retention.

How to hand a flexible working request On your tables there are several cards.

Please place the applicable cards in the correct order for: Dealing with a flexible working request which the business is accepting.

You have 5 Minutes

ORDER FOR ACCEPTING A FLEXIBLE WORKING REQUEST: 1. Review Company’s flexible working policy (this will be the employee’s review).

2. Submit a request for a long-term flexible working arrangement in line with Company policy.

3. Review Company’s flexible working policy (this will be the employer’s review).

4. Check the employee is eligible.

5. Consider the impact on the business of the flexible working request.

6. Consult with any relevant personnel to assess the feasibility of the flexible working request.

7. Confirm the decision to the employee within 2 months of the flexible working request.

8. Provide the employee with an addendum to their contract to confirm the changes of terms of employment.

Declining a flexible working request

Employers can reject a flexible working request, but only for one or more limited business reasons that are set out in law.

Employers must consider all flexible working requests reasonably.

Which of these is a permitted legal reason to refuse a flexible working request?

A.

The employee is still in their probationary period

B.

It is thought that the request would negatively impact customer service

C.

The business considers it would be preferable for the employee to continue their current working arrangement

D.

The employee didn’t make their request in writing.

Which of these is a permitted legal reason to refuse a flexible working request?

B.

It is thought that the request would negatively impact customer service

Can you list any more reasons for refusal of a flexible working request?

Hint: there are 8 in total.

You have 5 Minutes

8 reasons to reject a flexible working request Statutory flexible working requests can only be rejected where one or more of the following genuinely applies: • • • • • • • •

the burden of additional costs; detrimental effect on ability to meet customer demand; inability to re-organise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods of the employee proposes to work; and planned structural changes.

What other options may be available to an employer than rejecting the request?

Is there a statutory right to appeal a flexible working request decision?

What would you do?

We are going to run through some scenarios for flexible working requests.

What would you do in this situation?

Scenario one “I was wondering if I could work from home sometimes, maybe just a day here and there if it’s okay as an informal arrangement.”

What would you do in this situation?

You have 2 Minutes

What you should do: • Acknowledge the request/clarify the position • Consult the hybrid working policy • Evaluate and respond to the employee’s request appropriately • Advise the employee of the option to make a formal flexible working request • Document any outcome in writing

Scenario two “I need flexibility in my schedule to decide what to do with my day. I would prefer if I did not have to attend meetings anymore, as they interfere with my productivity.

Could this be arranged on the basis of a flexible working request?”

What would you do in this situation?

You have 2 Minutes

What you should do: • Acknowledge the request • Make clear that this is not a flexible working request • Arrange to meet with the employee to understand the impact of meetings on their day • Explain the business’ position on meetings • Consider any adjustments to the employee’s current schedule to assist • Document any outcome in writing

Scenario three “I would like to make a formal flexible working request to reduce my hours and only work 9am-1pm, Monday to Friday.

“I am sure Tom can pick up my responsibilities in the afternoon, as I heard him say that he is planning on resigning soon to go on a world cruise he’ll need the money for that.”

What would you do in this situation?

You have 2 Minutes

What you should do: •

Acknowledge receipt of the flexible working request

•

Check the employee’s eligibility

•

Understand the Company’s position in respect of the request

•

Arrange to meet with the employee, if required, to discuss the request/ any alternatives

•

Confirm the decision to the employee in writing, with reasons if the request is rejected

•

Offer the employee the right to appeal, if the request is not fully accepted

•

Make any necessary changes to terms of employment (immediately or after trial period if agreed)

Scenario four “I would like to invoke my right to make a flexible working request, and I would like to not work for the next month. I am pregnant so you have to give me reasonable adjustments.”

What would you do in this situation?

You have 2 Minutes

What you should do: •

Acknowledge the request promptly o Clarify whether the request is under flexible working legislation or pregnancy-related reasonable adjustments

•

Direct to policies

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Assess the request fairly o Flexible working does not entitle immediate time off; it typically involves permanent or long-term changes to working patterns o Pregnancy-related adjustments may justify temporary accommodations

•

Start a dialogue o The employee’s needs and medical basis for the request o Whether the one-month leave is a health-related adjustment or a proposed flexible working change

•

Request medical evidence if needed

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Consider Alternative Solutions o Explore options such as sick leave (with medical certificate), maternity leave planning, or temporary remote/light duties

•

Document everything

Handling flexible working requests Questions to ask the employee when discussing the flexible working request

You have 2 Minutes

Questions not to ask the employee when discussing the flexible working request

Questions you should consider asking: • How would you ensure that your work quality is maintained under this proposed flexible arrangement?

• Have you considered how the redistribution if work among existing team members could potentially be managed?

• What, if any, additional costs do you foresee arising from your flexible working arrangement?

• Do you consider that the hours requested could have an impact on the business given nature of our work?

Questions to not ask: • Can’t you just wait until after your probation period to make this request?

• What if the rest of the team gets jealous and they all start submitting their own flexible working requests? It might set a precedent.

• You don’t have children, nor are you a carer, so why is this required?

• How do you plan to stay connected and collaborate effectively with the rest of the team?

Consequences of getting it wrong…

• Risk of grievances • Risk of tribunal claim

• Lack of clarity on working arrangements • Harm to workplace morale

Changes to flexible working • FIVE KEY CHANGES IN APRIL 2024 • EMPLOYMENT RIGHTS BILL TO EXTEND FLEXIBLE WORKING RIGHTS FURTHER ✓ Eight reasons to remain the same ✓ Requiring a rejection to be reasonable ✓ Requiring explanation of reasons relied upon

Managing requests – key takeaways • Ensure clarity on nature and scope of the request • Treat all requests consistently and fairly •

Avoid assumptions or bias

• Consider alternatives to rejection where possible •

Keep clear documentation

•

Keep an eye of time limits

• Stay up to date with changes

Any questions?

Tea and coffee break 15 Minutes

• 11:45 - 12:15: ‘Mediation as an effective alternative dispute resolution tool’ with Mali Smith • 12:15 - 13:00: Panel discussion with Tina Chander (Wright Hassall), Sandra Berns (Centric HR Limited) and Patrick Keith • (St Philips Chambers) • 13:00 - 13:30: An update from Tina Chander on her fight to end workplace bullying and harassment • 13:30: Lunch