How an employer should respond to a request

Under the Acas Code, an employer is expected to consider the request and arrange to discuss it with the employee as soon as possible but the discussion need not always be face-to-face. If both parties agree it can be held some other way, for example, over the phone. There is no need for a meeting if the request is approved. The Code says that “wherever possible, the discussion … should take place in a private place where what is said will not be overheard”.

There is no statutory right to be accompanied by a work colleague or union rep under the new procedure but paragraph 5 of the Acas Code says that employers should allow an employee to be accompanied to any meeting or appeal “by a work colleague”, and that the employee should be “informed about this prior to the discussion”. The Acas guidance describes it as “good practice” to allow employees to be accompanied by a work colleague or trade union rep if they wish, and that employers should consider the specific needs of disabled workers, and non-native English speakers.

The request must be considered “carefully”, looking at the benefits for the employee and the business, and weighing these against any adverse business impact. The employer must not discriminate unlawfully.

The employer must communicate their decision to the employee in writing as soon as possible. If the request is accepted, with or without modifications, there should be a discussion as to how best it can be implemented.

Under section 80G ERA 96, amended by section 132 CFA 14, the employer must consider and decide all requests, including any appeals, within three months from receipt, unless the parties agree to extend time.

A request must be considered objectively and can only be rejected for one of the following business reasons, set out in section 80G(1)(b) ERA 96:

• the burden of extra costs;

• inability to organise work among existing staff;

• inability to recruit extra staff;

• detrimental impact on quality;

• detrimental impact on performance;

• detrimental effect on ability to meet customer demand;

• insufficient work for the periods the employee wants to work;

• a planned structural change to the business.

The Acas guidance contains some scenario-based examples of business reasons under each category.

If the request is rejected, the Code says the employer “should” allow an appeal against that decision.

If an employer arranges a meeting to discuss the application or any appeal, and the employee fails to attend both this and one rearranged meeting without good reason, the Code says the employer can consider the request withdrawn.

The Acas guidance suggests trialling a flexible working proposal where an employer is unsure as to its business impact. In any event, says the guidance, joint periodic reviews of new arrangements are sensible to see how they are working out.

The guidance also looks at handling multiple requests, and confirms that where an employer has already granted one request, the impact of that first request on the business context can legitimately be taken into account when considering later requests by other employees. Where several employees already work flexibly, with the result that any more flexibility could impact adversely on the business, the guidance suggests it would be “good practice” to call for volunteers to modify their existing contractual working pattern to create capacity for granting new requests.

Unions can play a key role in helping to consult on new procedures to implement the rule change and to help secure staff “buy-in”. Employers also need to ensure they do not discriminate unlawfully, remembering that the majority of carers are female, many of whom, as TUC research has shown, are over 50. A reasonable agreed procedure could still prioritise requests by staff with caring responsibilities, as long as the procedure makes it clear that exceptions can be made.

Where employees need to work flexibly because of a disability, it would be a reasonable adjustment to prioritise their request for flexible working over those of other non-disabled staff.

Many employees with caring responsibilities already work flexibly following requests made under the existing law (i.e. before 30 June 2014). Unless otherwise agreed, where working patterns have already been adjusted following a flexible working request, those adjustments represent permanent contract changes. They can only be revised with the employee’s agreement.

However, LRD has already been approached by one rep whose employer is seeking to review and possibly reopen existing flexible working arrangements in the light of the imminent law change, relying on an express contract term permitting unilateral contract change to meet “business need”. Attempts by employers to interfere with existing flexible working arrangements risk challenge as both direct and indirect discrimination and, where appropriate, contract breach.

Any requests for flexible working made before 30 June 2014 remain subject to the old regime. For guidance on the rules that governed flexible working applications before 30 June see the free TUC Worksmart guide, Time off and flexible working for carers (www.tuc.org.uk/sites/default/files/TimeOffforCarers.pdf).

An employee who has made a flexible working application after 30 June 2014 can bring a claim in the employment tribunal if the employer fails to deal with the request reasonably, wrongly treats the request as withdrawn or fails to provide a final outcome within three months of the request.

There is a deadline of three months in which to bring a tribunal claim. As always, there is a tribunal fee for making the claim, and the first step in the claim, under rules introduced in April 2014, is to contact Acas for early conciliation. This step must be taken within that three-month deadline (see Chapter 1).

Employees may also want to consider attempting mediation to solve their dispute. Note that mediation does not “stop the clock” on the time limit for any potential tribunal claim.

Another option is the Acas Arbitration Scheme. The outcome of arbitration would be binding. There is more information about this option in the Acas booklet Handling Requests for Flexible Working www.acas.org.uk/media/pdf/p/6/Handling-requests-to-work-flexibly-in-a-reasonable-manner-an-Acas-guide.pdf.

Relevant law: Sections 80F-80I, ERA 96, as amended by sections 103-106 CFA 14

In Commotion Ltd v Rutty [2006] IRLR 171, a request to work flexibly was turned down by the employer on the basis that it would have a detrimental effect on the business, without first investigating whether the request could be complied with. The EAT confirmed that a tribunal is allowed to examine the employer’s reason for refusing a request to check whether it is factually correct, but not to second-guess whether or not it was fair.

It is up to the employer to decide whether or not a suggested new working pattern will or will not impact detrimentally on their business, and a tribunal will not second-guess this assessment, but that decision must be based on a proper review of the evidence, after considering the views of the employee, and the decision to turn down the request must not be unreasonable.

An employee has the right not to be victimised or dismissed for a reason concerned with a request for flexible working (sections 47E and 104C, ERA 96).

A refusal to allow a worker to reduce their hours could be indirect sex discrimination (see Chapter 6). The Court of Appeal has held that a refusal to allow an employee to work on a job-share basis was sex discrimination, and could not be justified when the employer had failed to show that the job could not be done on that basis (Hardys & Hansons plc v Lax [2005] IRLR 726).

In Shaw v CCL Ltd UKEAT/0512/06, the EAT held that a refusal to allow part-time work was direct and indirect discrimination and a breach of contract, entitling the employee to resign and claim constructive dismissal.

In Mitchell v David Evans Agricultural Ltd UKEAT/0083/06, the EAT said that when deciding whether an employer was justified in refusing a request to work part-time, the tribunal should have undertaken a proper analysis of the needs of the business, and considered whether the proposal for a full-time worker was “reasonably necessary”.

In Little v Richmond Pharmacology [2013] UKEAT 0490/12/2009, a sales executive planning her return from maternity leave asked to work flexibly, partly at home with remote access and partly office-based. Her request was initially rejected by a manager who told her sales executives could never work part-time, but before her return date, that refusal was reversed on appeal by a more senior manager who said she could trial it over three months. Instead, she resigned and claimed indirect sex discrimination. Her claim failed because since the employer changed its mind before her return date, she suffered no disadvantage.