Becoming a bendy business

At the end of June the Flexible Working Regulations were amended, with the right to request flexible working extended to cover all employees after 26 weeks' service rather than only those with children under the age of 17 (or 18 if the child is disabled) and certain carers.

That change will present challenges for many businesses. Recent statistics from the Office of National Statistics show that 78% of people with dependent children are in employment (ONS 2012) and one in seven employees also has the responsibility to care for a family member. That makes the chances of hiring someone wrestling with home life commitments quite high. But now, as an employer, you’re duty bound to consider flexible working requests from a larger percentage of employees. Here, FPB business advisor Jo Eccles, provides guidance on how to handle such requests in an appropriate manner. 

1. Be clear on what it means

The Employment Rights Act 1996 allows all employees to ask their employer to consider changes to their contract terms and conditions to allow them to work flexibly, provided they have worked there for more than 26 weeks at the time they put in the request. Only one request can be made by the employee in any 12 month period.

It is important to bear in mind that until June this year the right only applied to parents of children under 17 and 18, parents with disabled children and carers. However as of this month the right is extended to all eligible employees.

2. Set up a clear policy

If not included already employers should consider setting up a clear policy on how requests for flexible working will be handled.

Key elements to include in any policy include:

· How employees should apply, including details of who the application should be made to and details that should be included in the application

· Clarity on how requests for flexible working will be given due consideration and will only rejected by the employer for one of eight legitimate business reasons

· That the employee can be accompanied by a union representative or colleague to a meeting regarding the request

· Provisions for appeals

· Clarity on timescales on dealing with requests for flexible working.

You may decide a written policy is not necessary, but you should ensure that all your employees know how to apply and what steps they must follow.

3. Ensure that all employees make the request in writing

By law all employee requests must be made in writing and you should provide guidance on what to include:

· The date of application, the change in working conditions they are seeking and when they would like the changes to come into effect

· The employee should outline the potential effect that the proposed changes may have on the employer and also suggest how any such effects might be dealt with

·  That this is a statutory request and if they have made an application previously for flexible working and the date of that application.

If your employee is only looking for an informal change to their working hours and conditions for a short period of time, for example so that they can pursue a course of study, you may want to consider allowing them to revert back to their old conditions after a specified period. It is important that employees also understand, that once agreed, the employer is under no obligation to have to consider further requests for changes for 12 months, but the employee can make an additional request though without statutory right.

4. Make sure you handle the request with care!

As soon as you’ve received a request it’s best to arrange to meet to discuss this with the employee as soon as possible, as the law requires that any flexible working requests are dealt with in a timely manner, usually within three months of receiving the initial requests including an appeal. This can be extended if agreed by both parties.

Sometimes a discussion may not be needed - if you are happy to accept the request, you may want to arrange a discussion to ensure that the changes proposed are the best solution for you and the employee. It is also a chance to discuss the changes the employee is seeking and how these can be accommodated. It should be done at a convenient time and location for both parties and it’s also good practice to allow the employee to be accompanied by a union representative or work colleague.

5. Consider carefully before making your decision!

You should consider the request carefully and weigh up the benefits of the changes for the employee and the business vs. any adverse affects the changes may have on the business.

You’re under no legal obligation to grant a request for flexible working if it cannot be accommodated on the following grounds:

· The burdens of any additional costs is unacceptable to the organisation

· The employer is unable to reorganise the workload among existing staff

· The change would have a detrimental impact on quality

· The employer feels the changes would have a detrimental impact on the businesses ability to meet customer demand

· The changes would have a detrimental impact on individual or company performance

· There is insufficient work during the periods the employee proposes to work

· Where the employer has planned changes to the business (e.g. restructuring) and considers the request will not fit into these plans

Having considered the requested changes, you must let the employee know your decision.  Either to:

· Accept the request and agree a start date and any other necessary action.

· Confirm a compromise agreed following the discussion

· Rejection of the request, stating clear business reasons and how these apply to the request and highlighting the appeal process.

Ideally this should be in writing to avoid any confusion later, and where the request is granted you should also set out the changes that will be made to your employee’s terms and conditions.  

In some situations you may be unsure if the request will work for your business and want to agree flexible working for a temporary or trial period to see how this would work in practice, rather than dismissing this out of hand. It’s advisable to make this clear in writing to the employee and to set out how this will be reviewed so that you can discuss how this is working and make any necessary changes.

6. Flexibility and fairness are essential

You may find that you have to deal with more than one request for flexible working. It is essential you deal with each of these fairly. Requests should be dealt with in the order that they come in, particularly for small employers if you accept the first request this will change the business context and this may impact on your decision on subsequent requests. 

If you receive more than one request, you are not required by law to make a value judgement as to which of the requests is more deserving. Each case should be assessed on its merits based on the business case and the impact refusing a request. You may also want to have a discussion with the employees to see if there room to come to a compromise before reaching a final decision.

If you are unable to come to decision you could consider getting the affected employees to agree to a process of random selection, and to include this in your flexible working policy to make this clear how this may be used.

Where the fact that you already have a number of flexibly working employees that is preventing you from agreeing to a new request, you could call for volunteers from existing flexible working employees to change their contracts back to previous arrangements, creating the capacity to grant any new requests.

7. An employee has the right to appeal

An employee should have the opportunity to discuss the refusal to grant their request, if there is new information that was not available at the time of the initial decision, or if the employee feels their request wasn’t handled reasonably in line with the employer’s policy. This will also allow the employee to raise the issue as a workplace grievance if they so wish. An appeal isn’t required by law, but remember if you do allow this you must consider this and the request within three months unless you agree an extension with an employee.

8. If in doubt get advice

Remember that expert advice is available from a variety of sources and often available through membership organisations. The Forum of Private Business membership package for example includes access to advice on a range of business issues including Employment Law.