Employees who want to improve their work-life balance have a legal right to request flexibility in their working hours, and employers are obliged by statute to respond reasonably. Whilst employees do not have an absolute right to flexible working hours, employers do need to follow the full process when considering a written request from an employee with more than 26 weeks’ service. Requests can be refused, as long as the process has been followed and the refusal relates to one of 8 business reasons, such as a detrimental effect on ability to meet customer demand.
Employers do sometimes miss the steps which have to be followed, leading to risks of successful discrimination claims in cases where requests relate to caring responsibilities. In one case in point, a seamstress was recently awarded compensation after her employer refused to give her Fridays off so that she could help care for her grandchildren.
The woman had worked as an ‘invisible mender’ for a small business for many years. Her two initial requests to work 30, rather than 39, hours per week were rejected, prompting her to make a third, formal, request under Section 80F(1) of the Employment Rights Act 1996. After her proposal was again turned down, she resigned and lodged a complaint with an Employment Tribunal (ET).
In resisting her claim, the employer argued that granting her request would have imposed additional costs on a business which was already facing financial difficulties and struggling to meet customer demands and deadlines. It was very hard to recruit full-time staff with the necessary skills and reorganising work schedules would have had an unwelcome impact on other employees.
In upholding the woman’s complaint, however, the ET found that the employer had failed to act reasonably. It heard that she had thought through the impact of her request on the employer and had offered to help cover busy periods, as well as being committed to completing work on time. In breach of the statutory process, no meeting had taken place; she had not been offered the right to be accompanied by a trade union representative or work colleague, and she had been afforded no right of appeal. There were also no steps taken to ensure that she had received the refusal letter. In the circumstances, she was awarded £1,832 in compensation, the equivalent of six weeks’ pay.
The key steps of the process are straightforward:
- hold a meeting with an employee who has made a flexible working request
- giving them the opportunity to bring a companion to the meeting
- offering the right of appeal against the decision.
The challenge is in making sure a request is always recognised: a request meeting the statutory requirements can sometimes be made in a fairly informal way and overlooked by a busy line manager. Where a request is being refused careful consideration does need to be given to the business reasons for doing so. A stock response of ‘we don’t have part-time staff’ is not likely to wash as a defence, without a compelling basis.