Off the record: How do I deal with a flexible working request that I don’t wish to grant?

Annie Hayes

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Editor

Off the record: How do I deal with a flexible working request that I don’t wish to grant?

By Annie Hayes

Daniel Isaac, principal in the employment team at City law firm, Withers explains how to stay on the right side of the law.

When the right to apply for flexible working was introduced in 2002, many lawyers saw it as a charter for refusal. The grounds on which employers could refuse applications seemed all encompassing and it was difficult to envisage a situation where an employer could not find a statutory reason to refuse the application.

Once the procedures came into force, the reality was quite different. Many employees took up the right and employers frequently acceded to their requests. Perhaps this was an example that the regulations were working by encouraging sensible dialogue between the parties, or perhaps it was just that employers were scared of the consequences of refusal.

This is a fear which is justifiable. Although the regulations themselves are relatively toothless – a Tribunal may award up to £2,320 for procedural defects where requests are refused, sex discrimination claims may be brought. Because more women are primary child carers than men, if a woman with childcare responsibilities is refused flexible working, she may consider it to be indirect sex discrimination.

If such a claim is successful, the claimant may be awarded compensation for injury to feelings (in a band between £500 and £25,000) and compensation for loss of earnings which, if she has a claim of constructive dismissal, can be substantial. In the circumstances, an employer wishing to refuse an application needs to exercise caution.

First the easy bit! An employer may refuse a flexible working application if it considers that one or more of the following grounds applies:

1. The burden of additional costs;

2. Detrimental effect on 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 work; and

8. Planned structural changes.

Refusing an application on one of these grounds may be straightforward but it will not necessarily protect the employer from a sex discrimination claim.

An employer inclined to refuse an application should always consider carefully the exact reasons for refusal. Some of the common reasons are set out below.

Many employers are fearful of opening the floodgates. In fact, the opposite is true. If an employer has no employees working flexibly, it will be easy for an employee to demonstrate that the employer’s mind is closed to such requests. On the other hand, if an employer allows one or two people to work flexibly, no such criticism can be levelled against it.

Employers wanting to keep the floodgates closed should actually consider allowing some people to work flexibly rather than simply refusing every application.

Another common fear is that the proposed arrangements will not work. Many employers, however, seem reluctant to put this to the test. While the regulations do not envisage trial periods, an employer and employee can strike a deal between themselves to explore over a period (usually about three months) whether the arrangements will work.

As long as the agreement is clear about who decides that it is not working and what happens when that decision is made, such an agreement should only assist. Firstly, it convinces the employee that the request is being taken seriously. Secondly, if the new arrangements do not work, there is a chance that the employee will recognise this.

Thirdly, if they do not work, the employee refuses to recognise this and brings a discrimination claim, the employer should be able to demonstrate good faith to the Employment Tribunal. Finally, there is always the chance that the arrangement will work and the employer will realise that the objections were unfounded!

Employers should also think about counter-proposals. If a working mother asks to work three days a week and is simply told “part-time doesn’t work”, neither she nor the Tribunal are likely to be impressed. If she is told that she can work four days but that three is simply too short, the response may not look so “knee-jerk”.

Finally, do try to treat these applications with an open mind. Many part-time workers are extremely conscientious and value their jobs and the relationship with the accommodating employer so much that they are actually better than full-timers.

Daniel Isaac can be contacted at: daniel.isaac@withersworldwide.com

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