‘How should we respond to a flexible working request?'


A version of this article was published in the ‘Financial Times’ on 30 January 2014.

A female member of staff has submitted a request for flexible working to spend more time with her five-year-old son. As a young but fast-growing business it is the first one we have ever had and, to be honest, I am not quite sure how to approach it. What are we expected to do? What are her rights?

Fladgate LLP advises:

It is a common misconception that a flexible working request creates a right to work flexibly. The law just provides a framework through which a request must be considered.

While it is not compulsory to grant these requests, employers should be reasonable in their decisions as a court’s sympathies will often lie with the employee when dealing with a rejected request. Moreover, a failure properly to consider or even agree to a flexible working request could, in some cases, constitute sex discrimination.

Provided your employee satisfies the eligibility criteria – she has 26 weeks’ continuous employment, is not an agency worker or a member of the armed forces and has not made a request to work flexibly in the preceding 12 months, then she has the right to make a request that you, the employer, must consider.

You might have legitimate business reasons why you cannot accommodate her request.

You are entitled to raise the following grounds as reasons for rejecting it: the burden of additional costs; detrimental effect on 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; insufficiency of work during the periods the employee proposes to work; planned structural changes.

If you consider that one or more of those grounds applies, then you may issue the employee with a notice of refusal, stating which ground applies, with an explanation as to why, and details of how to appeal. If you can’t accommodate the employee’s requested arrangement, you should still explore whether any other arrangement might be acceptable to both parties.

You should ensure you follow the statutory procedure, adhere to time limits and demonstrate a serious consideration of the request. In April, however, the statutory procedure will be abolished and employers will simply have to demonstrate they have considered requests reasonably.

Finally, you should maintain clear records, as consistency will be crucial when dealing with similar requests in the future.

For further information, please contact Taj Rehal (trehal@fladgate.com) or Michael McCartney (mmccartney@fladgate.com).

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