HR · 13 June 2016

Flexible working and the law: What micro business owners need to know

Flexible working and the law
Flexible working can bring real benefits to all parties when managed well

Flexible working can bring real benefits to employers as well as employees, and workers have a right to request it. Carole Thomson explains what this means for small business owners.

Before you consider this as just another law you have to comply with, be sure to have a look at the numerous articles and supportive research evidence that flexible working can bring real benefits to all parties when managed well.

Though many business owners still seem to be reluctant to embrace flexible working, it has a lot to offer. Employers see is reduced fixed costs whilst having access to senior HR and health and safety input as needed, while workers get to work flexibly in a job they love – a win-win situation.  What’s more, as the demographics of the workforce change, younger employees will expect a better work-life balance and access to a more flexible way of working. It is predicted that nine to five will not be seen as the norm in the future workforce, and possible therefore that those employers who do not embrace flexible working will lose out on the most valuable talent in the future to those employers that do.

What are my legal obligations?

In June 2014, it became law that any employee with at least 26 weeks’ service would have the statutory right to request flexible working arrangements. Previously, this was just reserved to parents of children under 17 (18 if the child was disabled) or to those with caring responsibilities for an adult.

The change also brought a more flexible procedure when dealing with flexible working requests. You now have a duty to handle flexible working requests in a reasonable manner, and to consider such requests and reach a decision within three months.

In answer to the most popular question I am asked, it is indeed only a “right to request flexible working” and not an absolute right to work flexibly. But, if agreed, the changes will then be considered as a permanent contractual change – unless otherwise confirmed in writing.

Each employee can only make a statutory request to work flexibly once in any 12-month period. Some of the most frequently asked for changes include different working hours, duties, locations and ways of working, but there are many others.

What is a reasonable manner?

The law says you must deal with requests in a reasonable manner, and ACAS have produced a statutory code of practice and guidance to help employers deal with flexible working requests in this way. Many legal professionals will agree that a good starting point is to ensure you at least follow this guide on any employment issues. The key points it makes are:

  • Arrange a meeting with your employee as soon as possible after receiving a written request to work flexibly
  • To discuss the request with your employee to understand the changes being requested, how they feel it will work operationally and how they feel it may be mutually beneficial
  • Give careful consideration to their request (I would add: investigate and base your decision on facts and not subjective unsubstantiated opinion)
  • Look at the benefit to the employee and your business
  • Carefully evaluate these benefits against any adverse business impact

On what grounds can you refuse a flexible working request?

There are eight key grounds where it may be fair to reject a request.  They are:

  • The burden of additional costs to your business
  • An inability to re-organise the work amongst existing staff
  • An inability to recruit additional suitable staff
  • A detrimental impact on the quality of your service or product
  • A detrimental impact on performance within your business (I would personally add any detriment to health and safety at your business)
  • A detrimental effect on your ability to meet the demands of your customers
  • Insufficient or unsuitable work available for the periods your employee wants to work
  • A planned structural change to the business

It’s important that your reasons should be based on factual evidence gained within an investigation, rather than an unsubstantiated opinion – the latter will not be a good enough defence if challenged in a tribunal.

What if you have more than one employee requesting flexible working?

The ACAS guidance states that requests should be considered in the order they are received – in other words, first come, first served. This can help alleviate the detrimental impact that conflict and grievances could bring if you allow one flexible working request but not another.  The simple fact is that it may not be operationally possible to accommodate all requests, so I would recommend you follow this.

My only caveat when it comes to dealing with requests this way would be where a later request is driven by a disability.   This could represent a reasonable adjustment to get someone back into work or remain in work, and as there already exists an element of required positive discrimination in this area this should be taken into account.

Don’t forget that claims of discrimination can still be brought by an employee who cannot rely on the statutory right to request flexible working because they have under 26 weeks’ service.

So, you’ve made your decision, what now?

Once you, the employer, have made a decision, your employee must then be advised and the decision put in writing as soon as possible. If you want to make amendments to their request, you will need to discuss this with the employee before accepting for rejecting it.

It is a sensible move to make any agreed variations to contract due to flexible working requests as “agreed in principle” and subject to a trial “probationary” period. Be sure to set reviews to ensure that the new arrangements are working for all parties.

What if someone is not happy with your decision?

The first route is for them to appeal using your appeals procedure, but ultimately any qualifying employee can make a complaint to the employment tribunal with regard to their employer’s handling of their request.

Unless your treatment of an employee constitutes unlawful discrimination the tribunal will only consider whether you:

  • Followed the procedure seriously
  • Took the application seriously
  • Made your decision on the correct facts
  • Gave reasons for rejecting the application that were based on one of the eight acceptable grounds

Some final thoughts

If you’re struggling to make a decision, don’t forget about the benefits. If someone is achieving the outcomes you need working from home, do you need them to waste time travelling an hour to and from the office every day?  Flexible working is a recognised retention tool to keep the talent you need within your business – not your competitors, and while it may not work for every position, when it does it can bring fixed costs down, increase performance and output.

It is important for you to implement (or review an existing) flexible working policy so your managers will be able to deal with any requests to work flexibly fairly, consistently and legally.

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ABOUT THE EXPERT

Carole is as a freelance senior HR consultant with over 18 years experience in supporting small businesses. She founded HR Support for Business to provide an affordable, but still professional, outsourced HR Support service for micro and small businesses looking for guidance.

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