Having looked at Maternity, Adoption and Shared Parental Leave policies last month, part 2 of our family-friendly policies series looks at best practice for handling flexible working requests (part 3 will consider parental leave, compassionate leave and time off for caring for dependants).

Organisations are becoming increasingly more focused on ways in which they can promote a better work-life balance for their employees. The promotion of flexible working is just one way in which employers can demonstrate their commitment to the task. Of course, the right to request flexible working is laid down in law, and something which employers must consider if the employee making the request is eligible. However, publication and promotion of a flexible working policy provides an opportunity for employers to demonstrate that they are open to and encouraging of flexible working arrangements with employees.

 The presence of a policy also provides transparency on the process to be followed. This not only ensures a consistent approach in the business to the management of flexible working requests but also allows employees to more fully consider their request in terms of the requirements of the role and the existing team structure.

What requests can be made?

Legally an employee with 26 weeks' continuous service can make a request to change their contractual terms including:

• The hours they are required to work
• The times they are required to work
• Where they are required to work.

 This statutory right to request a contract variation is provided for under Article 112F of the Employment Rights (NI) Order 1996.

 Note, however, that this is simply a right to request a contractual variation and have that request considered in line with the statutory scheme; it is not an absolute right to work flexibly.

How should a request be handled?

Whilst in England and Wales statutory procedures for dealing with flexible working requests have been replaced with a simple requirement to deal with applications "in a reasonable manner" within a period of 3 months, albeit supported by the ACAS Code of Practice, dealing with a flexible working request in Northern Ireland is still subject to a statutory process.

The Flexible Working (Procedural Requirements) Regulations (NI) 2003 provide set timescales for an employer to deal with a request, including meeting with the employee, delivering a decision and allowing a right of appeal.

Mishandling a flexible working application could lead to potential claims including constructive unfair dismissal, discrimination or a failure to make reasonable adjustments.

The statutory procedures, however, could also leave you exposed to potential penalties for simply not following process or getting the decision wrong.

Where a flexible working application has not been dealt with in accordance with the statutory procedures, an employee may make a complaint to the Industrial Tribunal for a suitable remedy. The Industrial Tribunal would have power in these circumstances to make an order for reconsideration of the flexible working application and make an award of compensation. The maximum compensation provided for under the Flexible Working Regulations (NI) 2015 is 8 weeks' pay.

Policy and Procedure

Given the importance of following procedures around flexible working requests, it is essential that line managers are trained and fully aware of their responsibilities, specifically the timescales for acknowledging and making a decision on a request.

In order to be considered a valid flexible working request, an employee must put their request in writing. They should state whether a previous application has been made and date the request.

The application should state clearly that it is a flexible working application, provide details of the change requested, and explain what effect the employee thinks making the changes would have on the business and how they believe that impact could be overcome.

Relevant Timescales and communicating

• 28 days from receipt of application to hold a meeting to discuss the request
• +14 days from meeting (if held) to communicate the decision
• + 14 days after decision for employee to appeal
• + 14 days to set up an appeal meeting
• + 14 days to communicate a written appeal outcome

Decisions should be communicated in writing and provide clear details of the decision. If the request has been approved this should include details of the contract variation and when it will take effect.

Remember that, once agreed, any contractual variations will be permanent. If refused, one or more of the prescribed grounds (outlined below) for refusal should be given along with details of the employee's right to appeal.

Employees have the right to be accompanied to any meetings relating to flexible working requests and you should make this clear when inviting an employee by letter to a meeting.

Extensions to any of the timeframes can be mutually agreed between you and an employee but best practice is to put this into writing and communicate the extension to the employee.

Refusing a request

The grounds under which you can refuse a request are outlined in Section 112G of The Employment Rights (Northern Ireland) Order 1996.

These are:

• the burden of additional costs,
• detrimental effect on ability to meet customer demand
• inability to re-organise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work
• planned structural changes.

In this month’s feature, we have included a template outcome letter which your organisation may wish to adopt in circumstances where a flexible working request is to be refused.

Discrimination and further protections to consider

Employers should be mindful that some employees who are eligible to make a flexible working request may have statutory rights beyond making a claim under the statutory flexible working provisions.

These could include, for example, employees requesting changes to working hours to accommodate childcare commitments (on return from maternity leave or otherwise), religious requirements or adjustments for a disability.

In London Underground Ltd v Edwards ([1997] IRLR 157) the EAT upheld that a single mother was unlawfully discriminated against when her employer required that she work a new shift pattern.

Having previously arranged her working hours around childcare needs, the rota change made it impossible for her to continue in employment. The negative impact that this policy had on female employees as a group, including the claimant, meant that it was indirectly discriminatory on the grounds of sex.

A man denied the right to work part-time may also be able to claim discrimination if he can show that the same request from a woman would have been seriously considered or granted. For example, in Walkingshaw v John Martin Group ETS/401126/00, a man claimed direct discrimination because requests from women in his firm to work part-time had been considered and granted; whereas the claimant's application was refused. Although this case was decided at Tribunal level (meaning that another tribunal would be free to reach a different conclusion) it does demonstrate that direct sex discrimination against men may occur in these circumstances. This is particularly concerning given that, unlike indirect sex discrimination, direct sex discrimination cannot be justified.

Under the Disability Discrimination Act 1995 (DDA), where a provision, criterion or practice (PCP) applied by or on behalf of an employer, or a physical feature on premises occupied by an employer, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as are reasonable in the circumstances to prevent the particular PCP having that effect.

Potential adjustments may include alterations or reductions to hours of work, or changes to an employee's place of work, for example, the need to work from home. Therefore, if an employee who is disabled presents a request to work flexibly, employers should be mindful of the positive duty to make reasonable adjustments. If meeting the terms of their request would constitute a reasonable adjustment, an employer should approve the request, unless there is a compelling justification for refusing it.

In the case of Secretary of State for Work and Pensions (Job Centre Plus) and others v Wilson UKEAT/0289/09, the EAT overturned the decision of the ET, holding that the employer had not failed in its duty to make reasonable adjustments when it rejected a request from an agoraphobic employee to work from home. The employer had been able to provide evidence that as the employee's work involved face to face interviews with the public and handling confidential files that others in the office would also need access to, his work could not effectively be done from home.

However, in the case of Caen v RBS Insurance Services Ltd ET/1801133/09, the ET found that an employer who had refused to allow an employee suffering from depression and agoraphobia, and found it difficult to travel to work with other cars on the road, had failed to make reasonable adjustments when it would not allow the employee to start work any earlier than 7.30 am. On the basis of the facts, there had been no reasonable basis to justify why the employee could start at 7.30am but not 1 hour earlier at 6.30 am.

Requests from employees who are about to go on, or return from, maternity leave should also be handled extremely carefully. You may wish to sign post employees to your organisation’s procedures around flexible working in your maternity, adoption and shared parental leave policies.

When dealing with requests for flexible working, the implied contractual requirement that an employer must maintain employees' trust and confidence still applies. Therefore, requests should not only be dealt with in line with the bare bones of the scheme, but must also be handled sensitively and with care, in order to avoid a claim for constructive unfair dismissal.

Finally, it is important to remember that just because a flexible working may be rejected for failure to qualify for the statutory scheme – for example, if the individual concerned does not have the minimum service requirement – an employee may still have one of the additional claims outlined above. For example, if an employee who seeks to vary her working hours because of childcare issues is unable to proceed with a flexible working request because she has less than 26 weeks service, it is arguable that this could give rise to an indirect sex discrimination claim. In such instances, it would be wise therefore to consider the individual circumstances and consider whether a flexible approach should be applied.

Trial periods

Often, when employers are considering flexible working requests, it can be difficult to gauge how it will work on a day to day basis. Turning down a request on the basis of one of the prescribed reasons without fully understanding the likely impact of granting the request could leave employers exposed to challenges by employees. Likewise, approving a request in the same circumstances would bring about a permanent change to the terms of conditions of employment which would cause the employer great difficulties to change if they subsequently realised the arrangement was not working for the team and/or clients or customers.

In these circumstances, and although there is no statutory requirement to do so, a trial period can be a useful way of practically assessing if the working arrangements proposed by the employee are in fact workable on a permanent basis. It can also be beneficial from an employee engagement point of view because the employer is not seen to be dismissing requests offhand but is in fact prepared to try out the arrangement in order to determine if it will work for both employer and employee.

Employees should be clear as to the duration of any permitted trial period, and in these circumstances should also agree in writing to an extension to the usual statutory time frames that would apply in respect of a flexible working request. Employers will still need to remember that they will be required to issue a formal written decision on the request. If the request is to be refused, the employer must specify the ground(s) for refusal. However, the completion of a trial period can provide valuable supporting evidence for the denial of a request.

Trial periods are not provided for in the flexible working legislation, but they can be advantageous to both employer and employee as it can be a great way to practically assess how the proposed working arrangement will work for the business and the employee.

Withdrawal of flexible working request

If, after submission of a request to work flexibly, the employee no longer wishes to proceed with the request, they will need to confirm this in writing. Your organisation’s policy should make clear that withdrawing a flexible working request will mean that it will not be further considered by the employer, and the employee will be barred from brining a further flexible working request for a period of 12 months.

Conclusion

In summary, promoting flexible working can be a great way to demonstrate your organisation’s commitment to providing work-life balance for your employees. Business benefits can also include improved productivity, performance and improved retention rates. A clear policy will not only help managers meet your statutory requirements and consider requests in a consistent, objective manner, but may also help employees make more considered requests. Being mindful of additional protections can help mitigate potential claims, and utilising trial periods, where appropriate may help manage employee expectations and potential business disruption.

Template letter - rejection of flexible working request

[On Company Headed Paper]

[Name of Employee]

[Address]

[Date]

Dear [Name]

Your Flexible Working Request

I am writing further to your flexible working request which was submitted on [date].

Following our meeting on [date] to discuss your request, and having carefully considered your requested flexible working pattern, I am writing to confirm that we are unable to accommodate your request for the following business reason(s):

• [The burden of additional costs.]
• [Detrimental effect on ability to meet customer demand.]
• [Inability to re-organise work among existing staff.]
• [Inability to recruit additional staff.]
• [Detrimental impact on quality.]
• [Detrimental impact on performance.]
• [Insufficiency of work during the periods the employee proposes to work.]
• [Planned structural changes.]

The above reasons apply in these circumstances because [insert the specific business reasons which provide basis for refusing the request].

You are entitled to appeal against this decision should you wish to do so. If you do wish to appeal, you should do so in writing by [date] and provide details of your reasons for appealing the decision.

Yours sincerely