If an employer accepts a request by an employee to work flexibly, will it open the floodgates for the rest of the workforce? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
An employee has requested to amend his contracted working pattern to come into the office earlier and leave earlier – this is to fit in with car sharing with his partner and something that fits with our ‘green’ policy.
His manager is happy to accommodate this request as it does not impact on the role. However, I am concerned that this will open up the floodgates for other employees in similar roles to make a similar request; we can accommodate one or two people but do not want the majority of our workforce changing hours because we have allowed it for one particular employee. Any suggestions on how to deal with this anticipated increase in requests for flexible working would be very much appreciated.
Legal advice:
Esther Smith, partner, Thomas Eggar
I am afraid that I don’t have any magic answers on this one. If you do grant his request then it does give others the potential to make similar requests, and arguably by allowing it for one, you have created a precedent for the future. However, I think it is important to bear in mind that unless someone has the statutory right to make a flexible working request (which this employee doesn’t) the employer has no obligation to even consider it, so a subsequent refusal to someone in a similar situation should not cause an issue with regards to flexible working.
However, the difference in treatment for this employee compared with others who may ask in the future, could give rise to a discrimination claim (if for example the next person who asks and is refused is from a different ethnic background, or a different gender or has a disability etc.) or possibly a constructive dismissal claim (on the basis that the failure to agree to the next employee’s request amounts to a fundamental breach of the mutual trust and confidence). However, the more reasons you have for distinguishing the treatment of each employee at the time, the better placed you will be to defend such a claim.
I’m not sure how large your organisation is, and whether it will become public knowledge to others that he has had his request agreed, but one thing you could consider doing, to demonstrate fairness, is to agree his request and any subsequent similar requests on a fixed-term basis (i.e. three or six months) after which they will be reviewed, with no guarantee of being continued. This will give you the ability to let others have a fixed period of working flexibly, but enable you to limit the numbers to two or three at a time, depending on the needs of the organisation.
The only downside of this is the administration of organising it, and keeping everything under review, but it may be worth the trouble if it keeps the workforce happy whilst maintaining the business’s ability to perform.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner, Mills & Reeve
In any case where an employee asks for flexible working you should, as a good employer, give proper consideration to that. You should make it clear that agreeing to the proposal (or a different proposal following discussion) is not to be taken as a precedent as each case will need to be looked at taking into account such things as operational need, cost, pressure on other staff, etc.
Obviously if the request is from a person who falls within the flexible working regulations there is a procedure to follow in considering the request and you can only refuse the request on one or more of the specified grounds but this should not impact on your general approach to be as flexible as you can, bearing mind the needs of the organisation.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
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