Making a request for flexible
working is a statutory right and refusal of a request can lead to costly
consequences as one employer found.
A sales manager in an estate
agent requested reduced working hours upon her return from maternity leave to
enable her to collect her child from nursery. She requested to work four days a
week finishing at 5pm rather than 6pm. Her request was refused by her employer
who cited a variety of reasons why part time working was not viable including
customer demand and financial impact. The employee went back to her employer to
see if an alternative working schedule that suited the business needs could be
found, however the business deemed their decision as final. As a result, the
employee resigned and raised a grievance regarding the way in which her
flexible working request was handled.
Employers need to be aware that
there is a statutory process which needs to be followed when a formal request
for flexible working has been received. This includes meeting with the employee
if the initial request cannot be accommodated and discussing what other options
may be available with a view to finding an arrangement that works for both
parties. If a request cannot be accommodated there are eight reasons that an
employer can rely on however, these should be reinforced by robust business
reasons and evidence as to why a proposed arrangement will not work. Trying to
shoehorn the rejected request into one of the eight reasons without further
reasoning could be problematic and could lead to an employee making a tribunal
claim.
Whilst the compensation for failure
to comply with the statutory process to handle flexible working requests, or
deal with a request in a reasonable manner, is capped at 8 weeks’ pay,
employers could find these complaints are coupled with claims of discrimination
too. Claims for discrimination, both direct or indirect, associated with
flexible working requests can be based on sex, age or disability and if
successful, attract uncapped compensation awards. Employees can also argue that
the failure to consider the request is a fundamental breach of contract and
therefore could resign and claim constructive unfair dismissal.
If a request for flexible working
is received from an employee, employers need to educate themselves on the
process to follow and give due consideration to the request. The right flexible
working arrangement can reap benefits for both parties so not only does it mean
legal obligations will be met and the risk of tribunal claims reduced, the
benefits to the business are there too.
