In the first of a new series, senior associate Layla Bunni gives insight and advice on real life legal cases. This month, an employee’s idea of flexible working is causing issues.
The dilemma:
A manager has approached the HR department to discuss some performance issues that he is currently experiencing with a member of his team. He has explained that having had an informal discussion with the employee about her performance, it appears that, on the two days that she works from home each week, she is, at the same time, also looking after her two-year-old daughter. He explained that, 11 months ago, the employee requested to work from home for part of the working week so that she could ‘deal with childcare issues’. This request was not made in writing, and it was granted without consultation with HR and without the manager following the correct flexible working procedures.
During the recent informal discussion regarding her performance, she told her manager that she assumed that it was common knowledge at work that she would be looking after her child on those days. Her manager has explained to HR that, as far as he was concerned, the presumption was always that the child would not be looked after by the employee during her working hours. He accepted that he never actually stipulated this to the employee in writing however. How should this be handled?
Layla says:
This case is a clear example of how failing to follow the correct procedures can impact on an employer’s business. It also highlights why it is important that a full and proper dialogue takes places with employees when dealing with flexible working requests – at the very least, this will ensure that employers are made fully aware of the reasons why the requests are being made and how the employee believes the arrangements will work in practice.
Working arrangements
At the time that the employee made the initial flexible working request to work from home, the manager should have referred the matter to HR to obtain the necessary advice and information about how the employee’s request should be handled. In particular, the following steps should have been taken by the manager:
• The employee should have been asked to put the request in writing, and specify any effects the proposed flexible working arrangements may have on the employer’s business;
• A meeting should have been held with the employee within 28 days of receipt of the written request so that the request could have been discussed in further detail; and
• The decision should have been communicated to the employee in writing within 14 days of the meeting. In that letter, any conditions attached to the new working arrangements (such as the child being in full time alternative care during working hours) should have been set out.
Had the employee’s manager sought HR’s assistance and followed the above steps, it is likely that it would have transpired through the discussions with the employee that she intended to continue to look after her child on the days that she worked from home. The employee’s flexible working arrangement is clearly not an acceptable one. It is a reasonable expectation that during the employee’s working hours (at home or in the office), she devotes all of her time and attention to her duties that she owes her employer under her contract of employment. She cannot do this at the same time as she is acting as the primary carer for a young child.
Next steps
It should be made clear to the employee now that the current working/childcare arrangement cannot continue. This decision can be supported by the fact that there are issues with her performance which appear to be as a direct result of her caring for her child when she should be working. The employee should be told that if she wishes to continue to work from home, she will need to make alternative arrangements for the care of her child on those days. By making these demands, the employee may assert that this is a breach of her terms and conditions of employment. This is not the case however – the company is continuing to allow her to work from home for the two days, as long as she remains in a position to devote all of her time and attention to performing her job.
If there is any suspicion that the employee has acted deceptively in making the request to work flexibly, and that she was likely to have been fully aware that the company would not have ordinarily agreed to her being allowed to care for her child while working from home, you may wish to consider taking disciplinary action against her as a result.
Awareness of flexible working policy
As a result of the recent extension of the right to request flexible working so that it now includes employees who have caring responsibilities for children who are under 17 and/or for adults who are in need of care, it is likely that flexible working requests will become more popular. It is therefore imperative that all relevant personnel are reminded of the company’s flexible working policies. They should also be told who has the statutory right to make a flexible working request, and what the correct procedure is that needs to be followed when an eligible employee makes any sort of request for flexible working.
Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues.
