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I
have just received an application for flexible working for the first time.
What do I do?
There
is a straightforward procedure that you must follow. Firstly, it is best
practice for you to write to your employee acknowledging your receipt of the
request. If the request has been submitted on the standard flexible working
application form FW (A), you can complete the slip at the bottom of the form
and return it to him.
You
must then arrange a meeting with your employee within 28 days of the date
you received their application. This meeting will provide both parties with
the opportunity to discuss the desired work pattern in depth and consider
how it might be accommodated. You then have 14 days from the date this
meeting takes place in which to notify your employee of your decision.
There are standard pro
formas available to help employers at each
stage of the procedure.
Of course, you may be happy to
accept the request as it is set out in the application. In which case you
will not need to hold a meeting. You can simply confirm your acceptance in
writing , stating the date when the new working pattern will begin.
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Is
there any exemption for small employers?
No,
small employers are not exempt from this law.
The duty to consider requests for flexible working was designed with
small business in mind. Small employers can benefit from flexible working
practices just as much as larger employers. Case studies of small employers
who have exploited flexible working arrangements to their benefit are
available.
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How
can I make sure that my employee is eligible to make a request - can I ask
to see a birth certificate?
The
vast majority of employers do not consider it necessary to ask for evidence
that their employee is a parent.
But if you do have genuine doubts you can request evidence of their
eligibility, which might include the birth certificate.
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What
if I can’t grant the person the change they have requested.
Can I say “no”?
Yes, of course. The law recognises that
there will always be circumstances where, due to the needs of the business,
you will be unable to grant a particular request. Therefore, it sets out
eight business grounds under which an employer can refuse a request. You may
only refuse a request under one or more of these grounds:
burden of
additional costs
Detrimental effect on ability to meet customer demand
Inability
to reorganise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during periods the employee proposes to work
Planned
structural changes
When refusing a request you must write to your employee stating the ground
for refusal and why it applies in the particular circumstances.
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But
if I refuse a request, won’t I be taken to an employment tribunal?
Experience
shows that if an employee knows their application has been considered
properly and there is a sound business reason why it can not be accepted
then whilst your employee may not be happy with the outcome they will accept
it.
An
employee can only make a complaint to an employment tribunal in specific
circumstances. They can not
make a complaint simply because they are unhappy with the outcome. The
circumstances are:
Where
the procedure has not been followed correctly
Where
the employer has based the refusal on incorrect facts.
The
law also protects employees for being dismissed or suffering a detriment as
a result of making a request and in such circumstances may also be able to
make a complaint to a tribunal.
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My
employee wants another colleague to attend the meeting to discuss the
request. Is it wise to agree to this?
The law
allows your employee to be accompanied by one companion to both the meeting
to discuss the request and to any further meeting to discuss a subsequent
appeal. This companion must be a worker employed by your company, and can
include a colleague or trade union representative who works at other
premises that form part of the business.
The
role of the companion is to support the employee. For example, if the
employee has not attended many meetings before, it is possible that he may
be nervous. The presence of a colleague can therefore make the meeting more
productive for the employer and the employee. The companion is permitted to
address the meeting, and to confer with the employee during it, but he may
not answer questions for the employee.
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Flexible
working arrangements are new to my organisation.
I would like a trial period to see if they work out.
If I agree to a request, does it have to result in a permanent
change to my employee’s terms and conditions?
If an
employer agrees to his employee’s request, then the new work pattern
constitutes a permanent change to the employee’s terms and conditions.
However, if both the employer and the employee are in agreement, a time
limit may be placed on the flexible working pattern, for example to allow
you and your employee to assess how the new arrangement works out.
Any
time-limited arrangement has to be agreed by the employer and the employee.
The employer cannot impose a time limit. If they do reach an agreement with
their employee, then they must record this in the letter to the employee
when they accept the request.
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A
couple that I employ had a child last year and now both want to work
flexibly.
Can they both make an application at the same time?
Yes,
they can as long as they are both making the request to help care for their
child. The law applies to all eligible parents, both mothers and fathers. In
this particular situation, you must be careful to consider each application
on its merit, and not allow personal knowledge of their family situation to
influence your decision. Again, you may only refuse a request under one (or
more) of the eight business set out in the law (see Question 4 above)
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I
suspect my employee wants to work at home so that she can avoid childcare
costs. She will not be able to work and care for her at the same time.
What should I say to her?
Use
the meeting to explore with your employee how they believe their request
will work and to raise any concerns that you may have so that you can
resolve any issues.
An employee who works at home is unlikely to be able to work and care
for their child at the same time.
Good practice with home working is to agree specific objectives are
set beforehand so that both you and your employee know what is expected.
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What
happens when my employee’s child reaches the age of six?
Nothing. Your employee continues with their working pattern at that
time.
Unless
agreed otherwise, once a request for flexible working has been accepted it
results in a permanent change to the employee’s terms and conditions.
The employee has no right to revert back to their previous working
pattern, nor can you insist on such a reversion.
The
employee will though no longer be eligible to make any further requests
(unless they have another younger child or disabled child under 18).
