Has an employee ever asked you if they can change their hours of work?

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Recently, we were asked the following question in relation to a GP Practice:

Q. One of our receptionists wants to come in later as she needs to drop her child to school. I am sympathetic as she is an excellent worker but I need her to answer phones as 8a.m. is our busiest time, plus I am worried about setting a precedent for other staff.  How should I handle the situation?

This is a summary of our reply:

A. If the employee has at least 26 weeks’ continuous employment, she should be told that she has the right to make a request to change the times when she is required to work under the statutory scheme to request flexible working provided she makes the request in writing and in compliance with the application information requirements under the scheme (see below).

Although the right is generally viewed as a right to request a permanent change to the employee’s contractual terms of employment, if she only requires a temporary change, in making her request, she can state the duration of the desired change. Only one request may be made under the statutory scheme in any 12 month period so if her request is approved, she would not be able to request another variation under the scheme for a period of 12 months (although she could still ask you without the statutory right).

The employee’s application must be in writing, setting out:

  • The date of the application, the change to working conditions she is seeking and when she would like the change to come into effect.
  • What effect she thinks the requested change would have on you as her employer and how, in her opinion, any such effect might be dealt with.
  • That this is a statutory request and if she has made a previous application for flexible working, the date of that application.

Once you have received her written request, you will have a three month decision period within which to consider the request, discuss it with her and notify her of the outcome. You are required to deal with the request in “a reasonable manner” and although there is no statutory definition of what is reasonable, the Acas Code suggests that the employer should arrange to talk with the employee as soon as possible after receiving the request unless the employer intends to approve the request, in which case a meeting will not be necessary.  Tribunals have been critical of employers who appeared to be more concerned to explain why a requested working pattern could not work rather than investigating how it could be accommodated so it is important when discussing the request with the employee to start from a “positive” perspective with a view to trying to overcome potential issues.

In this case, there is a concern that by agreeing to the request, you would be setting a precedent for other staff and it is true that decisions concerning flexible working requests should normally be made consistently.  However, inconsistent decisions can be made if there is a reason, such as that the organisational capacity for flexible working has been reached and that to grant any further requests would undermine the business. Often, a sensible way forward for the parties, is to agree a trial period.

Although there is no statutory right for the employee to be accompanied at any meeting, the Acas Code recommends that in order to deal with requests in a reasonable manner, the employer should allow employees to be accompanied by a work colleague and that the employee should be informed of this prior to any discussion.

In deciding whether to accept the request, you will have to weigh the benefits of the requested change for the employee (and, in this case, possibly for your business since you say she is an “excellent worker” and she might leave if her request is not accepted) against any adverse business impact, including possible costs and potential logistical implications. You should let her have your decision in writing as soon as possible.

If you accept the request or reach agreement on a variation of the request after discussion, the new work pattern will be a contractual variation to the employee’s employment and will be permanent unless otherwise agreed, for example by way of a trial period  or a time-limited change after which she reverts back to her original working pattern.

If you reject the request, it must be only for one or more of the following grounds:

  • the 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 the periods the employee proposes to work;
  • planned structural changes.

The test is a subjective one so if you consider that one of the grounds applies, then the test is satisfied and the employee could only challenge your decision if your view is based on incorrect facts.  In this particular case, you may be inclined to reject the request on the ground that it will have a detrimental effect on ability to meet customer demand but if there is a receptionists’ rota, it might first be worth enquiring whether any other member of the receptionist team would be willing to swap their hours.

Although there is no statutory requirement to include an explanation as to why a particular ground applies, it would always be good practice and sensible to do so, particularly as the Acas Code suggests that the employee should be allowed to appeal against the rejection of their request and may be seen in many cases as an essential part of dealing with a flexible working request in “a reasonable manner”.  In addition, an employee who has received a clear and credible explanation of why their request cannot be accepted and, where appropriate, an alternative cannot be found is more likely to remain an engaged member of the employer’s workforce and less likely to challenge the decision.

Although it has been suggested that the statutory right to request flexible working lacks teeth because any redress under the statutory scheme for an employee whose request is rejected is limited, employers should be aware that where an employee seeks to vary their hours to accommodate childcare commitments, the employee may also bring a claim for indirect sex discrimination on the basis that more women than men are likely to combine paid employment with child caring responsibilities.  Even then, you may be able to show, on the facts of this case, that working certain hours is objectively justified because 8 a.m. is your busiest time.  Fundamentally, whereas the legislation governing the statutory right to request flexible working offers little scope to examine the commercial rationale, in a claim for indirect sex discrimination the reason why the decision has been reached is fundamental to establishing whether the decision can be justified.

Finally, if the employee has less than 26 weeks’ continuous service, it should be noted that there is nothing to stop her making an informal request to change her working pattern and although the statutory scheme will not apply, she could still have an indirect sex discrimination claim if her request is rejected.  Accordingly, you may like to deal with it in a similar way to a request under the scheme in order to remain consistent.

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Ali Kabani
Posted in Employment Law Update, Latest News.