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In part 1 of this series, we explored the changing nature of the UK's working population, resulting in more employees seeking flexible working patterns to accommodate their responsibilities outside of work.
Following our nationwide series of Employee Engagement seminars which covered a wide range of topics from wellbeing to flexible working practices, employers sat down with Paul Ball, Partner at Gateley Plc’s Leeds office and asked the following questions to find out more about how employers can effectively manage requests for flexible working patterns.
It’s vital that you deal with the request in accordance with the statutory regime and that you have legal grounds to defend yourself against any potential discrimination claims. To achieve this, you need to ensure that your refusal is based on one or more of the following reasons:
The burden of additional cost
Inability to reorganise work amongst existing staff
An inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Detrimental impact on ability to meet customer demand
Insufficient work for the periods the employee proposes to work
Unplanned structural changes to the business
Furthermore, you should keep a record of exactly why you are unable to accommodate the request. If you are unable to support your reasons for refusal with evidence which stands up to scrutiny, then you will be more likely to lose any discrimination claim which may be directed against you.
More often than not, the legal consequences for refusing a flexible working request are relatively minor. Although an employee in this situation may pursue an employment tribunal claim and be successful, any monetary compensation will be limited to an award of eight weeks' pay, which is capped at the statutory maximum (currently £489 a week). If you have completely ignored or offhandedly refused to grant a request, than an employment tribunal may order you to reconsider the request, but it won’t have the power to order that you agree to the request.
However, the risks of a poorly handled flexible working request become much greater if the employee has more than two years’ service within the company. This is because they may decide to resign and seek to claim that their resignation amounts to constructive and unfair dismissal.
For instance, if the employee has been advised by a medical practitioner to work less hours due to underlying health issues, but the employer refuses to grant the request without reasonably considering the employee’s needs and exploring alternative options, then the employee may likely claim that they have been indirectly discriminated against on the basis of their disability.
Just the same, if a mother requests flexible working arrangements due to childcare commitments, she may lay a claim for sex discrimination if the request is denied without discussion or attempt to make reasonable adjustments.
If an employee pursues a claim of indirect sex or disability discrimination (either indirect discrimination, discrimination arising from disability and/or a failure to make reasonable adjustments), the consequences could have a significant and negative impact on your business.
Discrimination claims, if successful, can lead to awards of compensation for injury to feelings as well as compensation for any lost earnings (which may arise if the employee has resigned as a result of a refusal to grant the flexible working request). Remember that there is no cap on the amount that an employment tribunal can award in successful discrimination claims, and even an injury to feelings award which is in the lower band could be up to £8,400.
This is why you should always aim to understand the employee’s reason for the request and proceed to manage it in a reasonable manner - all while gathering evidence to demonstrate how you have endeavoured to make reasonable adjustments even in occasions where you were unable to accept certain flexible working requests.
In addition to the legal implications of refusing a flexible request, there are other areas in which your business can suffer should you fail to manage the process in a reasonable manner:
The employee seeks work elsewhere and then resigns
Deterioration in performance
Informal and formal grievances arising out of trivial incidents which previously would have been acceptable
Increase in staff negativity and turnover
If you find yourself unable to agree to the employee’s request, then you should at least aim to be proactive and open- minded in considering alternatives. Consider testing the arrangements on a trial basis to give both sides the opportunity to properly assess the impact. If you do this, and obtain strong evidence that the arrangements have had a negative effect, then you will be justified in then informing the employee that you are unable to continue.
The bottom line is that communication and a positive approach will ultimately go a long way to reassuring your employees that you respect and value their input and wellbeing at work, even if you are unable to agree to their request.
Paul is a Partner in the Leeds office of Gateley Plc. Part of Gateley’s national Employment Team of more than 25 specialist employment lawyers, Paul has over 20 years’ experience advising employers on all aspects of employment law, in particular discrimination issues, contractual issues arising on business transfers, as well as significant experience of delivering in-house client training. For any advice on the latest employment law updates and how they may impact your business, you can contact him by phone on 011 326 16793.
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