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Ask the expert: Flexible working requests


Ask the expert

Can an employer refuse a request for flexible working if it is likely to cause disgruntlement amongst other employees? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

I have an employee who’s come up with a quite creative way of solving some of his childcare problems. He wants to continue to work full-time, but do his full-time job by working longer for nine days then take one day off every fortnight. His wife is asking her employer the same question. I like his approach but I’m inclined to say no for a couple of reasons:

1. I feel it will move the emphasis in the workplace away from being employed to do a job, towards being employed to work certain hours.

2. We have a very hard working workforce, and many people already regularly put in more hours per day, 10 days a fortnight, than this chap would be putting in for nine days a fortnight while retaining his full-time salary.

I’m not sure, however, if I can refuse his request as finance is my area of expertise, and HR is just part of my role. Not being an expert, I’d be really grateful for any help available.

Legal advice:

Esther Smith, partner, Thomas Eggar

This is certainly a novel method of tackling the problem of childcare and one we see being proposed more and more. I assume this employee is on a salary rather than hourly paid, and therefore if you agree his request you are, as you say, moving away from the idea that people are paid to do a job rather than being in the office for specific hours.

If the request is granted, then it is likely to cause disgruntlement amongst other employees who work beyond their contractual hours to get their jobs done, and will resent the fact that he is effectively getting a day off every fortnight as a reward for what they do too.

There are prescribed grounds for refusing a flexible working request, and I am sure that you will be able to come up with a reason in your business that fits in with one or more of these criteria.

I am not sure what he does but it may well be that working later than others is not feasible due to clients / customers not being around at that time, or due to colleagues and others he needs to interact with not being around.

The prescribed grounds are:

  • Burden of additional cost

  • Detrimental effect on ability to meet customer demand

  • Inability to organise work among existing staff

  • Detrimental impact on quality

  • Insufficiency of work during periods employee proposes to work, and/or

  • Planned structural changes.

Also, it is worth bearing in mind that if you don’t grant his request, relying on one of the grounds above, there is little that this employee can do about it, and he can only really challenge the procedure followed in dealing with his request, rather than the decision itself, at a tribunal. Of course if he is not happy he may just leave, but he would need to find another employer prepared to accommodate his requests.

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 and employment law specialist, Mills & Reeve

Assuming that this is a request for flexible working (statutory right to request a contract variation) made under section 80F of the Employment Rights Act 1996, and is made in accordance with the procedural requirements of the Flexible Working Regulations 2002, then you are obliged to comply with certain duties set out in section 80G of the 1996 Act (this includes holding a meeting within a certain time frame).

Importantly, the legislation is quite prescriptive about the reasons you may use for refusing the request. There are eight in all. In relation to your question, you might like to consider refusing on the grounds of ‘detrimental effect on ability to meet customer demand’; possibly ‘detrimental impact on quality’; or perhaps ‘detrimental impact on performance’. However, if push came to shove you may be asked to prove that these reasons really do apply.

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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