In response to a flexible working request from an employee, can we just say “No”? A question many employers ask. And the answer? Absolutely not! Employers are required to consider all such requests seriously and must deal with the request in a reasonable manner. Subject to the employee having a minimum period of 26 weeks’ service with the employer, all employees have the legal right to request flexible working providing they have not previously made such a request in the previous 12 months.
Dealing with an employee’s request for flexible working in a “reasonable manner” will include the employer carrying out an assessment of the advantages and disadvantages of the application on the business. In order to do this, it will be necessary to hold a meeting with the employee to discuss the request. You should follow ACAS guidance on dealing with such requests.
Whilst the timings of when an employer must respond and make a decision in relation to a flexible working request is not as stringent as it was before, employers should consider the request and communicate their decision within 3 months (or longer if agreed with the employee) of the original request being received.
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The most effective way is to carefully review the role that the employee undertakes and consider how the changes would affect the ability of that employee to fulfil the role if the proposed changes were made. Would the company need to make other adjustments? Would those adjustments be feasible and realistically affordable? Would it not be practical to make the adjustments due to the detrimental effect they would have on your business? A tip on demonstrating you have seriously considered an application is to go back to the employee asking relevant questions. For example, if the employee has asked to finish at 5pm rather than 6pm you could ask “How do you propose we would deal with any queries from other staff or clients that only come in at the end of the day, but which need an urgent response?”
Once you’ve asked some relevant questions and received responses from the employee, you’ll need to put together your response letter. In circumstances where you conclude you have good business reasons for rejecting such a request we can add value by helping you construct a watertight letter, making sure you deal with each of the points raised in the employee’s application giving examples of why the requested variation is not workable (for example that leaving early would put a considerable amount of strain on the rest of the team, which would in turn have a knock on effect on their performance and the quality of their work). Post the Covid-19 rejecting applications for home working may become more difficult especially where this model worked well in the shutdown period.
If the request for flexible working is approved, this should be communicated in writing to the employee as soon as possible, but no later than 28 days after the request was approved. If however, the request cannot be accommodated, employers should provide the employee with written reasons as to why the request has been rejected. Such reasons might include:
It is also best practice to offer the employee the right of appeal as this illustrates that you are acting in a reasonable manner.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.