Joanne Payne, Solicitor in PwC’s Employment Team
According to a recent survey undertaken by the TUC, two in five low paid young parents are treated badly by their employer following their requests to work flexibly. Examples of the poor treatment cited include being offered fewer hours or less desirable shift patterns or ultimately, losing their jobs.
If correct, this demonstrates worrying workplace practices which may be in contravention of employee legal rights. It is important that employers are fully aware of their obligations to ensure they do not fall foul of the legislative requirements.
In the UK, an employee with at least 26 weeks’ service can make an application for flexible working for any reason. The employer must deal with the request in a reasonable manner. There is no legal definition of what it is to deal with a request in a ‘reasonable manner.’
Employers should read the ACAS Guidance ‘Keys to Handling Requests in a Reasonable Manner,’ which sets out good practice including:
• Meet the employee as soon as possible to discuss the request and allow the employee to be accompanied by a trade union representative/work colleague.
• Communicate any likely delays to the employee.
• Consider the request carefully.
• Inform the employee of the decision in writing as soon as possible.
• If the request is accepted, notification of this should include how and when the changes will be best implemented (a section 4 statement ought to be issued).
• The employee should be made aware of the impact of the change to their terms and conditions (for example, as regards salary, bonuses and pension entitlements).
• A rejection can only be based upon prescribed statutory grounds (below) and the employee must be given the right to appeal the decision.
The employer is required to notify the employee of the decision on the request (including any appeal) within three months (unless the employer and employee agree to extend this period).
Grounds for refusal
Once the employer is satisfied the employee is eligible to make the request, and that the request is technically compliant, employers must only refuse the flexible working application for one or more of the following reasons:
• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• the work can’t be re-organised among other staff;
• people can’t be recruited to do the work;
• flexible working will affect quality and/or performance;
• there’s a lack of work to do during the proposed working times; or
• the business is planning changes to the workforce.
These are subjective grounds meaning that if the employer considers that one or more of these grounds apply, then it would generally be difficult to challenge the reasons for refusal unless the decision is based upon incorrect facts.
Implications and Penalties
If an employer does not comply with the statutory rules and/or does not deal with the request reasonably, an Employment Tribunal may order the employer to reconsider the request and/or make an order for an award of compensation (currently up to a maximum of eight weeks’ pay).
Further, employees may have grounds to make a discrimination claim if it can be established that the employer’s actions can be linked to a protected characteristic. For example, where the request is made to accommodate religious beliefs, a refusal could give rise to a claim of indirect discrimination on religious grounds. There is also a risk that the employee may resign and claim constructive unfair dismissal on the grounds that the employer breached the duty of mutual trust and confidence when managing the flexible working request.
Often, employers will wish to have a flexible working policy in place so both the employer and employee are aware of the process that will be followed, and decisions that will be taken when employees may such a request.