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Flexible Working… What are the rules?

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In 2014 legislation was passed giving staff the right to make a flexible working request. Under the regulations employers and employees alike must follow a few simple steps to ensure applications are eligible and responses fair.
As with all staff related matters, procedure is key to ensuring a fair process and one that is consistent for everyone. Creating a policy and procedure which sets out the expectations of all parties, is often the best way to provide clear and concise instructions on how an application should be made, the steps involved and how long it is likely to take. Following your procedure is essential in supporting the application and managing employee expectations and will reduce unsatisfactory outcomes. It is important to respond within a reasonable time – the regulations state the matter should be completed within three months; including any appeals held.
Flexible working requests can cover a whole range of situations, including:

changing start and finish times
reducing hours to work part-time
flexibility with start and finish times (sometimes known as ‘flexitime’)
working hours over less days (‘compressed hours’)
work from home or elsewhere (‘remote working’), all or part of the time
job share

A request does not always have to result in a permanent change to the contract. In most cases it is advisable to include a caveat to review the arrangements and its impact upon the business, otherwise you may find a necessary change which is business driven may not be easily achieved.

Responding to a flexible working request can be a challenging part of business management. The way of working has changed, and good, reliable talented staff are often refusing to settle for the more traditional way of working. Prior to the lockdowns, many companies employed this very traditional way of working and measured their team and managers productivity through process, attendance, and output. Remote/hybrid working has changed that. It would be considered unreasonable to refuse a work from home application on the basis that ‘we prefer our staff to come in’, or that the business needs were such that no role could easily be done from home – unless of course it can be proved. Clearly, there are roles that are not so well suited to working from home and require thought and consideration when it comes to ensuring the business needs are met.

Sometimes a business consideration will mean that a flexible working request is denied. In cases such as this it is important to reference the guidance given within the ACAS Code of Practice to ensure a decision falls within one of the following reasons:

the burden of additional costs
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
a detrimental impact on quality
a detrimental impact on performance
a detrimental effect on ability to meet customer demand
insufficient work for the periods the employee proposes to work
a planned structural change to your business

Relying on the guidance should result in a well-balanced and well-informed business decision that will protect your process against responses that are potentially borne out of what just may have happened before rather than recognising the true needs of the employee and the future of the business.
Maher v Taylor Engineering & Plastic Ltd ET/2401590/20 the Employment Tribunal concluded the requirement for the role to be full time and office based was discriminatory.
Mrs Maher, a full time, long serving internal sales manager, made a flexible working request towards the end of her maternity leave. The details of how Mrs Maher worked was overlooked by the employer when considering her request. As a matter of course, Mrs Maher would work her overtime from home, she would attend daily production meetings of no more than 30 minutes at which frequently staff would attend the same meeting by phone. Mrs Maher occasionally met with customers at a pre-arranged day/time, and most of her role was performed online. Mrs Maher described her daily travel time and childcare issues as the reasons for her application.
Given the information above, the role appeared to offer enough historical evidence to support Mrs Maher’s application. Overtime had been performed away from the office over a period and it had been proven to work. The production meetings attended both in person and via a call provide evidence show scope for flexibility. Finally, the ability to pre-determine when client appointments are held went a long way to support a flexible working application.
The ET held that the treatment of Mrs Maher had been indirectly discriminatory, her childcare responsibilities put her at a disadvantage, and she was unable to work full time on site. The ET concluded that she had been subject to constructive dismissal and she was awarded compensation.
Article by Karen Gredley – Director of HR & Procurement at Edmondson Hall Solicitors. Contact or 01638 560556

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