Are you “Happy to Talk Flexible Working”?
That’s the strapline the Flexible Working Task Force is urging employers to use when advertising jobs as part of their campaign to increase the availability of flexible working.
And while managing flexible working arrangements may feel like an HR hassle you’d rather avoid, it’s important to be aware that since 2014, all employees have a legal right to request them.
There are many benefits to offering flexible working for an employer too, such as access to a wider talent pool, a more loyal and engaged workforce, reduced absenteeism and improved wellbeing.
But what are your rights as an employer? After all, you’ve got the commercial needs of your business to meet. And if one person is entitled to a flexible working arrangement, does that mean you have to make the same allowances for everyone?
Here’s how to handle things fairly and legally.
Firstly, what exactly is flexible working?
Flexible working is when an employee’s working pattern is adjusted to better accommodate their needs.
Just as everyone’s needs vary, so do flexible working arrangements, from a simple alteration in start and finish times, to a more complex pattern of annualized hours.
Types of flexible working:
Flexible working might look like any of the following:
Flexitime – where employees can vary their start and finish times provided a certain number of hours are worked each day, week or month.
Part-time or reduced hours
Home or remote working – working away from the office at home or another location on one or more days per week.
Job sharing – where two employees share the work of one full-time job
Compressed hours – where an employee works a full week’s worth of hours, but over a shorter time frame, for example working the equivalent of five typical working days over four days.
Flexible working vs agile working – are they the same thing?
Agile working has become a bit of a buzz word in the modern world of work. And while it does encompass flexible working, there are differences between the two.
Flexible working relates to specific requests made by individuals to differ their work pattern away from the business’ norm. The driving force is the employee, seeking changes that better accommodate their individual needs.
Agile working is better defined as a business-wide culture, and tends to be driven from the top down, motivated by business objectives to improve efficiency. While it encompasses when and where work is done, it also includes internal processes, and how that work is done.
Who’s eligible for flexible working?
Any employee who’s worked for you continuously for at least 26 weeks is entitled to make a flexible working request. Flexible working is no longer reserved just for parents or carers.
An employee is only entitled to one flexible working request every 12 months. This prevents employees chopping and changing their work patterns excessively.
Many employers will make allowances for a second request if they recognize their employee’s circumstances have changed unexpectedly.
Do you have to accept a flexible working request?
You don’t have to accept the request, but if you do decline it, you must provide justification for doing so on one of the following grounds, as set down in the legislation:
- 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
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to the business.
If you decline a request, failing to provide at least one of the above justifications could leave you open to a legal claim.
How to manage a flexible working request
Informal requests: In some instances, an employee may come to you informally and ask for a temporary arrangement that is easily granted. In this scenario, simply hold a meeting to agree the details and confirm the new arrangements in writing. There’s no need to make things more complicated.
Formal requests: For more complex, or longer-term changes, there are four key steps to managing formal flexible working requests.
Step 1 – The employee should make the request formally and in writing.
Their request needs to include:
- The date of the application, the change they are seeking to their working conditions and when they would like the change to come into effect.
- How they think the business might be affected, and how these effects should be dealt with.
- Reference to the fact that they are making a statutory request
- Whether they’ve made a previous application for flexible working, and, if so, when that application was made.
Some businesses like their employees to complete an application form, to make sure that they cover off all the required information.
Step 2 – Hold a formal meeting to discuss the request.
Next invite the employee to a formal meeting. It’s best practice to give them written notice of the meeting and let them know they have the right to bring a representative.
During this meeting, invite the employee to explain their reasons for the request and discuss any potential challenges the business might face in trying to accommodate it. If you’re unsure whether the request can be met, explore any potential to compromise.
Questions to ask in a flexible working request meeting:
A concern many managers face when it comes to questioning employees about their flexible working requests is how much they can actually ask. Often the reason behind a request is personal, and employers are unsure what questions could be considered too intrusive.
However, it’s important that you have a full understanding of the reasons behind the request. This means you’ll be better able to fairly weigh up the impact of the request on the business, versus the impact saying no might have on the individual.
So, don’t be too hesitant to ask for the information you need in order to understand the situation in full and make a fair decision. Just let the employee know that there’s no pressure to share any details they’re uncomfortable sharing.
The key questions to ask are:
- When do you want the change to start?
- Do you want it to be a permanent change to your terms and conditions?
- (If temporary) how long do you need the change to last?
- Talk to me about the reasons for your request?
At this point you may need to draw out further details to help you assess the situation. For example, if a full-time employee asks not to work on a Tuesday from now on, and they say it’s for dependent care, you could ask the following questions:
- Who are you looking after?
- What is your relationship to them?
- If it is a child – how old are they? Are they in school?
- Have they got any additional needs I need to be aware of?
- What other care is in place for them?
- How do you manage/do they manage at the moment?
- What has changed?
- Why do you need Tuesday in particular? [If Tuesday is a particularly busy day or is a day on which you already have fewer staff, explain this to the employee.]
- What other options have you explored?
- If I can’t offer you Tuesday, would any other day of the week be helpful?
- How will this impact the rest of the team, do you think?
- What ideas have you got to help the team cope with the impact?
Step 3 – After careful consideration, inform the employee of your decision in writing.
You must notify the employee of your decision within three months of their request, but we recommend that you respond to the request as soon as you can. Also bear in mind that the three month period also includes the time that any appeal procedure may take.
If you’re declining their request, you must explain your reasoning for doing so using at least one of the established list of justifications.
Step 4 – The employee’s right to appeal
It’s important to be aware that if you refuse a request for flexible working, the employee does have the right to appeal the decision. Ideally, their appeal should be heard by a more senior manager. If you must hear it yourself, do so as objectively as possible.
Testing out a flexible working request
As it can often be hard to know for sure whether you’ll be able to accommodate a request until you try it, you may want to agree to test the change. Three months is often a good length of time for both parties to assess the impact of the change.
Formally review the situation at the end of the trial period and inform the employee of your decision to either make the change permanent, or decline the initial request, providing your reasoning.
If the trial has not been successful for the business, this can then be used to evidence why you can’t make the change permanent.
Flexible working after maternity leave
While requesting flexible working is now an entitlement for everyone, the majority of flexible working requests still come from mothers returning from maternity leave.
Key to watch here is that flexible working requests are handled formally. You’ll likely have several informal catch-ups with your employee while they’re on maternity leave, but it’s important to be mindful that any informal discussions around their plans to return to work have the potential to be misinterpreted by one side.
If your employee would like to make a flexible working request for their return after maternity, it’s important to work through the request in detail with them, recording the specifics of the request and your decision in writing, to be sure that both parties are in agreement.
Flexible working and contract changes
If the employee has requested to change their working pattern on a permanent basis, their contract must be changed to reflect this.
If the request is only for a temporary period, you can agree a more informal arrangement without having to make changes to contracts. Any decisions should be confirmed in writing to make sure the situation is clear on both sides.
Reverting to the previous working pattern
Once a contractual change has been made, the employee no longer has the right to return their previous pattern of work. The change is permanent.
Similarly, you don’t have the right to put them back on their previous arrangements, even if the circumstances that led to their request have changed, e.g. their children have grown up.
Things to remember when managing a flexible working request
Take time to consider the individual’s request and, when meeting with the employee, try and discuss other options which could be viable if their initial request looks problematic. Be open to ideas, do not discount them immediately and remember that recruiting a new person is costly.
Question whether the request fits the business
The nature of the request will be perfect for the employee, but it could be detrimental to your business. You may need to try and negotiate a compromise that suits both of you. If you can’t accommodate the request, make sure you provide sound justification as to why.
Assess each request independently on its own merits
Many employers worry that if they permit one flexible working request the flood gates will open and everyone to want similar changes.
It’s important to remember that just because you’ve permitted one arrangement for one individual, it won’t automatically entitle others to the same arrangements. You’d need to assess each request against the circumstances within the business at the time the request was made.
For instance, while you may feel that you can accommodate the absence of one of your two sales advisors between 4 and 5 pm, you could reasonably argue that you would be unable to meet customer demand, should the second advisor then ask to leave at 4pm too.
Things to avoid
This could be a very personally challenging and delicate time for the employee and they may find the process very difficult.
Getting contractually tied into a working pattern you are unsure of
Once a formal flexible working request is approved, you’ll need to change the employee’s working hours in their contract. It’s often best to make the change temporary at first so that, if it doesn’t fit your business, the change can be reversed.
Get HR Support
If you’ve received a flexible working request from an employee, but feel unsure whether you can accommodate it, our HR consultants can help.
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12th Feb 2016