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How should I deal with a request for flexible working from my employee?

Nov 17, 2016

An employee who has at least 26 weeks of continuous service can make one flexible working application to their employer within a 12 month period to vary their terms and conditions of employment.

The request from the employee would usually be by letter.  It could be made to change the hours the employee is required to work, or to change the times they are required to work or to change where their work is done.

Once the employer receives the request,  they are required to deal with this in a reasonable manner and are obliged to notify the employee of their decision to the request within a “decision period” which is either within 3 months of the request or such longer period agreed between the employer and the employee.

The employer is only entitled to refuse the application on a number of different statutory grounds, namely burden of additional costs; detrimental effect on ability to meet customer demand; inability to organise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work and planned structural changes.

An employer might decide to agree to the employee’s request or to propose a different arrangement to take place within a trial period.  Alternatively the application can be disposed of by agreement before a decision is reached or the employee could decide to withdraw the application.

If the employer rejects or proposes a different arrangement the employer should notify the decision to the employee and state which of the grounds they are relying upon and explain why they consider those grounds apply.

If the employer rejects the application, the employee should also be given a right to appeal against that decision.

If the above procedure is not followed, an employee could bring a claim in the Employment Tribunal.  This would be on the grounds that the application was rejected for reasons not permitted by statute; that the application was not dealt with in a reasonable manner or that the employer failed to notify the employee of the decision within the decision period; or that the application was rejected upon an incorrect fact.

If the employee succeeds, the Tribunal will make a declaration to that effect and can also order that the employer reconsiders the request and can award compensation to the employee capped at 8 weeks’ pay.

There may also be a further risk of a discrimination claim if the application has been refused because of the protected characteristics of the employee such as on sex or race grounds.

Should you wish to discuss any of the above further please do not hesitate to contact Julian Cole, Litigation Solicitor at Barker Son and Isherwood on 01264 325805, via email: jcole@bsandi.co.uk or through the free, no obligation enquiry form on our website.


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