In September 2021, a mum who was refused a 5 p.m. finish was awarded £185,000 at tribunal for unfair dismissal. Alice Thompson had pursued a successful career as an estate agent and when her daughter went to nursery, she requested a 5 p.m. finish rather than a 6 p.m. finish to pick up her daughter from day-care and a four-day week. Her employer refused this request and she felt she had no other option but to resign, after having no counter-offers to her flexible working request.
The tribunal found that Ms Thompson’s flexible working request was not considered fully, and that her employer’s failure to consider the request put Ms Thompson at a disadvantage. Therefore, the court awarded her £185,000 for loss of earnings, loss of pension contributions, injury to feelings, and interest.
This begs the question: What is flexible working and when can a request be rightfully refused?
What is flexible working and who can apply?
Under the Employment Rights (NI) Order 1996, employees have the right to ask their employer for flexible working. Flexible working can comprise of:
- Part-time working
- Different working hours over different days
- Compressed hours: Working full-time hours in less days
- Job sharing
- Work from home arrangements
In order to be eligible to apply for flexible working, the person applying must be an employee. That means they’re employed under a contract of employment and they must have 26 weeks of continuous service. An employee can only make one request for flexible working within a 12-month period, including requests that have been accepted and rejected.
What does the process look like?
In order to apply for flexible working, an employee should submit a request in writing describing what they would like as their new working pattern and when they would like the start date to be. The employee would also need to detail what, if any, impact they believe this would have on the business and how this could be rectified.
Sometimes, you may be happy to accept the request without needing to discuss it further with the employee. In this case, you should notify the employee in writing that you’re happy to accept the request without amendment. However, on most occasions, you’ll want to discuss the employee’s request further. To do this, write to the employee within 28 days of receiving the request, asking for a meeting to take place to discuss the request. At this meeting, discuss with the employee their reasons for the flexible request. If you’re concerned about its viability, think about agreeing to the change on a trial period. If the requested hours are not suitable, you may be able to compromise and trial a compromised flexible working solution.
Take into consideration the reasons why the employee has requested flexible working. Consider these on a case-by-case basis and show empathy to the employee’s needs. If you’re adamant that you cannot facilitate the request, explain your rationale to the employee. There are limited grounds which an employer must satisfy to justify refusing the request.
You must contact the employee within 14 days of the meeting to outline the outcome of their request in writing. If you’re rejecting the request, you must specify the reason(s) why. The entire process underlines the importance of having a flexible working policy in place.
When can I reject a request for flexible working?
In order to refuse a request for flexible working, you must demonstrate how you’ve satisfied at least one of the below criteria:
- Burden of additional costs when establishing flexible work arrangements
- Detrimental impact on service
- Inability to reorganise work among existing staff
- Cannot recruit
- Impact on quality
- Impact on performance
- No work to do when they have requested to work
- Structure change approaching
Over the last number of years, it’s become clear that courts are increasingly empathetic to the employee when they submit a flexible working request. Therefore, you should be careful to fully consider the request or any amendments that you can facilitate to demonstrate how you’re supporting staff.
Need help handling flexible working requests?
Here at Peninsula, we know that handling flexible working requests can be tricky, especially with the day-to-day running of your business to consider.
That’s why we offer 24/7 access to employment law advice. To speak with an employment law expert and have your flexible working questions answered today, call 0800 917 0771.
