The right to request flexible working is often perceived to be an entitlement for new mums only. However, all staff have a legal entitlement to apply for flexible working. Is your school sufficiently equipped to deal with flexible working applications? Do you know your statutory rights and obligations? Do you have the confidence to reject an application?
As well as thinking that flexible working is only an entitlement for new mums returning from maternity leave, many employers also believe that it’s easier for them to agree an application (even though the school cannot really accommodate the request) than refuse it, due to the perceived hassle of the process. This is not the case. In this blog, Fusion Business Solutions will guide you through the legal obligations, providing helpful tips along the way.
Employees who have been employed continuously for 26 weeks or more have a statutory right to request a contractual variation (i.e. to make a flexible working application). Remember, this statutory right is to request a contractual variation/flexible working. Employees and employers often misconceive this and assume the statutory right is to automatically be granted flexible working, particularly if an employee is returning from family leave (such as maternity, paternity, adoption or shared parental leave). This is incorrect.
Flexible working no longer applies to just new mums. Provided an employee has the requisite length of service, he/she can apply for flexible working for any reason (such as a lifestyle choice). This has confused some employers and left them asking whether an employee’s application should be given more weight/preferential treatment if the reasons for the application relate to childcare/carer responsibilities. The answer to this is no, not necessarily.
It is your choice how you deal with the application. However, Fusion’s advice would be to focus more on whether you can accommodate the requested contractual variation, rather than focussing on the reasons for the application. By doing so, you will ensure that you are fair and consistent, avoiding any further complaints of preferential treatment (which, as you may know, can soon lead to claims of discrimination).
Once you have received a request, you should ensure that this is confirmed in writing by the employee. Employees can only make one request for a contractual variation within a 12 month period. Therefore, double check that the employee has not previously made a similar request. Under previous legislation, employers had very prescriptive timeframes in which to deal with a flexible working request. This has now been relaxed and you have a three month window (from the date of the request through to the appeal decision) in which to deal with the request. This may seem like a long time but it’s not if you don’t have your house in order from the start.
Your statutory obligation on receipt is to:
- Meet with the employee
- Seriously consider the request
- Confirm your decision in writing, offering the right of appeal
- Hold an appeal hearing (if appropriate) and confirm the final decision in writing
Your obligation is to seriously consider the request, not to automatically grant flexible working. If the school is in a position to accommodate a request for a contractual variation, this is great news. There is a lot of HR commentary and research outlining the way in which part-time employees are more efficient (particularly with the use of their time whilst at work), highly motivated, loyal and go above and beyond for their business (in this case, your school). Part-time working brings many advantages to both a business and the individual.
However, if you are struggling to accommodate the request, you need to be brave and say so. Have a comprehensive business case in place so that your solid grounds for rejecting the application jump off the page. You may have a high proportion of part-time staff already and this application may just tip the balance. Alternatively, the employee’s particular role may be an integral part of the school that cannot be carried out on reduced hours. It’s important to look at the impact the request will have on the school, colleagues and clients, and drill down to explain how you cannot reduce the negative impact this will have on the school. Reasonable, well considered business cases are less likely to be challenged by an employment tribunal, as this will help you demonstrate that you have seriously considered the employee’s request, thereby fulfilling your legal obligations.
If you cannot accommodate the employee’s original request, but have a compromise/alternative working pattern, then say so. Offer this to the employee as an alternative and do not be afraid to have that dialogue with the employee to reach some form of resolution which works for both the individual and the school. Again, you will receive less challenge from an employment tribunal if you have offered an alternative which an employee has unreasonably refused.
Be confident in dealing with flexible working requests. Do your homework, have a strong business case, and engage with the employee to reach a solution. It does not have to be the case that you automatically agree to the employee’s demands, simply because it’s not worth the hassle.