Adopting a flexible approach
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If an employee wants to work in a more flexible way you have to seriously consider their request — and be prepared to provide good
reasons for rejecting it Jonathan Exten-Wright reports.
0 perators should be prepared for requests from staff who want to work hours that better suit their lives. These might include requests to change the employee's core hours, or even their location.
The law limits this right to employees with at least 26 weeks' continuous service who are responsible for the care of a child under six years old (or 18 if the child is disabled) or who care for an adult in need of care.
This does not prevent someone who does not meet these requirements from making a request informally — the only people specifically excluded from making a request are agency workers, members of the armed forces and anyone who has made such a request in the previous 12 months.
The employee must apply in writing, stating that the request is being made under the statutory right to request flexible working and explaining how he/she is eligible to apply. The application must also contain details of the flexible working requested. the date this change would become effective, and how it will affect the employer.
It could be that you decide to grant such a request immediately. In this case you should send your written approval to the employee within 28 days. If you want to discuss the request with the employee, a meeting should be held within 28 days. If you think the request is unworkable, you should consider whether there is an alternative. The employee has the right to be accompanied at the meeting by a companion, who must be another employee or a trade union representative.
The outcome of the meeting must be given in writing within 14 days. If you need more time to make a decision you must seek the employee's agreement to an extension of another 14 days.
In granting the request you must notify the employee in writing, including details of the changes to the work pattern and the date from which they are to become effective. The new work pattern will be permanent unless further changes are agreed later.
You can refuse a request because of: • the burden of additional costs • a detrimental effect on the firm's ability to meet customer demand • an inability to reorganise work among existing staff • an inability to recruit additional staff • a detrimental impact on quality • a detrimental impact on performance • lack of work during the periods the employee proposes to work • planned structural changes If you refuse you must notify the employee in writing, including the date. You must cite one of the factors listed above and explain why this reason applies. In the notification of refusal you must also set out the procedure for an appeal. The applicant then has 14 days to submit an appeal in writing.
On receiving an appeal request, you must hold an appeal meeting within 14 days. Again, the employee has the right to be accompanied by another employee or a trade union representative.
The outcome of the appeal must be delivered in writing, showing the date, within 14 days.
If upholding the appeal, you must provide details of the work pattern agreed, with the date that it is to take effect.
If dismissing the appeal, you must state the reasons, referring back to the employee's reasons for appealing and explaining the refusal.
After the appeal meeting an employee can make a complaint to an Employment Tribunal, but only if the employer has failed to • hold a meeting • allow the attendance of a companion at the meeting • notify the employee of the outcome of the meeting • offer a right of appeal • provide a reason for refusal • base a refusal on the permitted reasons The employee should lodge his claim within three months of the employer's breach of procedure, or within three months of notification of the appeal decision.
The Employment Tribunal can order you to reconsider the employee's request by following the correct procedure.
The maximum amount that the employee can be awarded is eight weeks' pay if there is no discrimination, and the week's pay has a legal limit, currently 1310. • • Log on to: www.dti.gov.uk/employment/ employment-legislation/employmentguidance/page35662.html Jonathan ExtenWright is a partner specialising in employment law at international law firm DLA.