Dealing with requests for flexible working hours

Flexible working hours are becoming progressively more mainstream and it's not just working mums who are requesting some flexibility from their employers. But how should you react if one of your staff comes to you to request a change in their working day? Jonathan Exten-Wright, a partner at international law firm DLA, specialising in employment law, gives you all the advice you need.

Who Can Request Flexible Working Hours?

Under UK law, certain people have the right to make flexible working requests to employers. These include:

• Those employed for at least 26 weeks continuously
• A parent responsible for the care of a child under six years old
• A parent responsible for the care of a child under 18 years old if the child is disabled
• A carer for an adult in need of care.

However, this does not prevent someone who does not meet these requirements from making a request informally. In fact, the only people specifically excluded from making a request are:

• Agency workers
• Members of the armed forces
• Those who have already made a request in the past 12 months.

How Can Employees Apply?

An employee requiring flexible working must apply in writing, stating that the request is 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 that this change would become effective
• How this change will affect you.

What Next?

When considering a request, you could decide to grant it only on the basis of the employee's application. You should send a written response to the employee within 28 days of the request. If, however, you would like to discuss the request with the employee, this should be done during a meeting that should be held within 28 days after the request was made. The meeting is an opportunity for you and the employee to discuss the request in full. The employee has the right to be accompanied at the meeting by a companion, who must be another employee or a trade union representative who works at other premises as part of the business. The outcome of the meeting, to grant or refuse the request, must be delivered in writing within 14 days after the meeting. If you need more time to make a decision, you must seek the employee's agreement to an extension of another 14 days.

A Trial Period

If you are unsure about the impact of the change in work pattern, a trial period may be suitable. You should specify in writing how long the trial period will be,including the deadline to make a final decision to grant or refuse a request is extended to the end of the trial period. Alternatively, the request could be adjourned for a period of, say, three months, during which time the flexible work pattern is tried out. The benefit of this arrangement is that a final decision on the request is made only at the end of the adjourned period, so the employee has not lost his/her statutory right to request a flexible work pattern during the adjourned period. Otherwise an employee is unlikely to agree to a trial where you may refuse the request at the end of the trial period that would then prevent the employee from making another request for the next 12 months.

Finding An Alternative Working Arrangement

If you think that the request is unworkable, you should consider whether there is another alternative working arrangement. An informal arrangement, such as a change in work pattern for a short period of time only can be made outside of the legal framework. In granting the request, you must notify the employee in writing, showing the date, with 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 between you.

Refusing A Request

There are only certain circumstances under which you can refuse a request:

• Because of the burden of additional costs
• Detrimental effect on the 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
• Unsufficiency of work during the periods the employee proposes to work
• Planned structural changes.

If you refuse, you must notify the employee in writing, showing the date and state one of the reasons above as the basis and explain why this reason applies. You must also in the notification of refusal set out the procedure for an appeal for employees who are not satisfied with your decision. An employee has 14 days after receiving the notification of refusal to submit an appeal in writing. On receiving an appeal request, you must hold an appeal meeting within 14 days. Again, employees have the right to be accompanied. The appeal meeting is an opportunity for the employee to discuss their dissatisfaction at the outcome of the request. Although it is not a legal requirement, employees often feel better about the appeal process if the meeting is conducted by someone more senior than the person who conducted the first meeting. 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 appeal and providing explanations for the refusal.

Going To An Employment Tribunal

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 or accommodate a time for 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
• Use the correct facts to make the decision.

The employee should lodge their 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. The weeks pay is capped to a limit provided by law. The main type of discrimination that is likely to affect you when responding to flexible working requests is sex discrimination. You can find out more information about flexible working hours on the Department of Trade and Industry website.