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Flexible Working Requests – Mythbusting!

by in Flexible working, HR - Human Resources, Staff

Flexible Working Requests – Mythbusting!In this blog I aim to unravel some of the myths surrounding flexible working requests.

1) You can only apply for flexible working if you have kids

Not true anymore!

In 2014 the law concerning who can make a flexible working request was changed, so that it no longer only applies to parents with children under 17 years of age (or up to 18 if the child is registered disabled).

Now all staff members have the statutory right to make a flexible working request provided that they’ve worked for your organisation for six months or more.

2) New starters can request to change their contracted hours/working pattern pretty much straight away

Also not true!

If you’re advertising a set number of hours or you’re specifying the working pattern for a post (e.g. 22.5 hours a week over three days; must work a Monday, etc.) and you offer a post on that basis, and the post is accepted, the employee has no right to request a change until they’ve worked for you for six months or more.

Of course, if you’re able to be flexible then you’d be silly not to, especially if the applicant is really good – but you’re under no obligation to do so.

3) I basically can’t say no to whatever they request

This is simply not the case. Under law, you have to consider the request.

The employee should submit a request in writing – ideally using a pro forma. The form should ask the employee to explain how the change will benefit not only themselves but also the business. And this is key, as if you have to decline the request you need to do so for a business reason.

Valid business reasons include:

  • The burden of additional costs (i.e. it would cost too much money to accommodate the request – e.g. needing to take on additional staff as a result)
  • An inability to reorganise work amongst existing staff (if the work isn’t going to get done, then the request can’t be approved)
  • An inability to recruit additional staff (this often comes up in requests from full-timers who wish to reduce their hours and take on a job-share – if there’s no prospect of a job-share partner being found then you don’t have to approve the request)
  • A detrimental impact on quality
  • A detrimental impact on performance
  • A detrimental effect on the ability to meet customer demand (e.g. a GP who only wants to work morning sessions but carries out specific clinics – this could reduce patient access)
  • Insufficient work during the periods the employee proposes working (e.g. a phlebotomist who wants to work afternoons, but blood samples are collected before lunchtime)
  • Planned structural changes to the business (e.g. if you know there’s an upcoming restructure or organisational change which will impact the individual’s terms and conditions anyway)

As you can see, there are many grounds for refusal. However, you have to bear in mind that showing flexibility can go a long way in terms of reciprocal goodwill. If you fear there’s no way you can say yes to the request in its current form, sit down with the individual and discuss their request to see if there’s some kind of compromise that can be reached. If not, at least this demonstrates that you’ve considered the request and you can explain what your reasons for refusal are.

In all cases you should acknowledge receipt of the request. If you can approve it, then do so and confirm the outcome in writing. If you can’t – or you can with certain provisos – then you should invite the employee to a meeting to discuss it. And again, confirm the outcome in writing.

You need to give the employee the right of appeal to someone more senior than yourself if you’re unable to say yes 100%. Ideally this should be one of the partners. However I’m sure, if you’ve done your homework and have still had to say no, their decision will be the same as yours. Their decision is final; there’s no further right of appeal after this.

Be aware of staff submitting requests due to protected characteristics; if a staff member is disabled and wants to change their working pattern or reduce their hours for the benefit of their health condition, you have to show that you’ve tried everything to accommodate them. A flexible working arrangement can be seen as a reasonable adjustment, so tread carefully in this area!

4) They can just keep submitting requests until someone gives in! 

No, they can’t! Your policy should state that employees can only submit one request every 12 months.

5) If I’ve approved a request, am I ever allowed to change it?

Yes. The best way to ensure this is well known is to add a clause in your policy stating:

Flexible working patterns will not be agreed permanently and may be reviewed subject to service requirements. Any new arrangement will be reviewed at six and 12 months to ensure service provision is not affected. Should the arrangement be deemed to be unsustainable or detrimental to the service, management reserve the right to amend or remove it.

If an arrangement has been going on for longer than a year, however, you may need to carry out a formal consultation with the individual to make changes, so I’d strongly advise reviewing it at the six and 12-month points.

6) Can I attach conditions to my approval?

 Absolutely.

If a staff member wants to reduce their hours and is asking you to consider turning their post into a job-share, there needs to be a condition attached. If you can’t recruit to the other half of that post, you can’t accept the request.

Following on from that, the employee needs to be aware of the implications should the job-share partner leave. Any job-share arrangement should be made on the basis that two people make up one post, and their roles are conditional on each other. If one leaves, there are two options open to them and to you as the employer:

  • The remaining employee increases their hours to cover the gap
  • You recruit a new job-share partner

If neither of these options works, then the remaining postholder needs to resign from the role, or you could seek to dismiss under SOSR. The post isn’t redundant; it’s still there and you still need it. They’re not entitled to redundancy – and they have been offered a suitable alternative role, i.e. the same one but with more hours. So if they can’t carry it out, they need to leave the post.

You should make it clear to the employee at the beginning that by accepting the job-share arrangement, which they’ve requested, they’re responsible for ensuring it’s sustainable, and if the job-share partner leaves they could be out of a job completely. And vice versa – if they choose to leave the job-share arrangement, the same problem will apply to their job-share partner.

From the beginning, clarify any other concerns you may have about the arrangement going forward and state that should any of those concerns materialise, it would be grounds to review and potentially end the arrangement.

Make sure this is included in your policy and your confirmation letter and you’ll be all set!

If you need further help, Practice Index PLUS has a fantastic flexible working policy and a number of resources to help in this area, including templates. You can access these by clicking here.

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