Q: An employee on maternity has requested flexible working. We’re not sure but would be willing to trial it for three months before deciding if it should be permanent. Is a trial a good idea and are there any downsides or tips as to how we should go about things?
A: Danielle Kingdon, partner in the employment team and Emma Wigmore, trainee solicitor at Osborne Clarke LLP reply…
Flexible working requests are increasingly common-place. The statutory right to request flexible working is available to all employees with 26 weeks’ continuous service. It allows an employee to request changes to their employment terms relating to their hours of work, the times they are required to work and their place of work. These categories cover a wide range of working patterns, making flexible working requests particularly attractive for new parents looking to work fewer days, start early/leave late or work from home etc thereby enabling them to spend more time with their child and accommodate childcare arrangements.
An employer is ultimately entitled to refuse a statutory request on any of the following grounds: burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods proposed; planned structural changes. However, the situation is often not as clear cut.
Is a trial of an employee’s proposed flexible working arrangements a good idea?
Where an employer is uncertain as to whether proposed arrangements will work, a trial period, on the face of it, is a good idea but remember:
Any agreement to new arrangements proposed on a statutory request will become a permanent change to the employment contract. An employer must therefore ensure it is comfortable with any new arrangements before accepting them. The legislation does not specifically provide for the use of trial periods as such, but it remains open for an employer and employee to agree the terms on which any new arrangements are entered into, including that they will apply initially only for a set period of time and are subject to review.
An employer must also deal with any statutory request in a ‘reasonable manner’, giving it careful consideration. Whilst an employer might be minded to reject a request outright over doubts as to its feasibility, agreeing to review the arrangements over a trial period and being open to making potential modifications should help satisfy this requirement, aside from maintaining good employee relations. Indeed, the ACAS Guide on the right to request flexible working, specifically recommends that employers should use a trial period in this scenario.
Employers must also remain alert to the risk of indirect discrimination claims (for which compensation is uncapped). It is generally accepted by our employment tribunals that more women than men have childcare responsibilities and hence an employer’s requirement to work full-time (or similar) puts women at a disadvantage. An employer considering rejecting a female employee’s request which has been made for childcare reasons, such as on a return form maternity leave, must consequently also be able to objectively justify its decision. A trial period may assist an employer in this respect.
Are there any downsides?
Almost inevitably there will be occasions where different views will be formed as to the success of the arrangements or otherwise. An employer concluding that the proposed arrangements will be difficult to sustain long term may well face difficult conversations with an employee who feels all has gone well, particularly where the employer is unable to offer any viable alternatives.
It would be wrong therefore for employers to rush into automatically agreeing trial periods whenever new working arrangements are proposed. Careful consideration must be given as to whether or not a trial period is appropriate. To make as informed a decision as possible, an employer should make sure it has all the information it requires.
An employee making a statutory request must provide the employer with specific information including the change that the employee is seeking and when they wish it to take effect; as well as explaining the effect of any change on the employer. An employee should be encouraged to provide as much information as possible to support their case.
Are there any tips for employers?
Below are key points for employers to consider when dealing with flexible working requests:
Familiarise yourself with the ACAS Code and ACAS Guidance which support the statutory right to request flexible working.
Try to pre-empt and plan for any requests. It will often be too early to discuss flexible working prior to an employee’s maternity leave but employers should establish the channels of communication during this important period so that open conversations can take place at the appropriate time regarding return to work arrangements.
Make sure there is a clear process for requests. Informal approaches to managers can cause confusion and leave the employer vulnerable to claims. It is a good idea to have a written policy which employees can be directed to and which also satisfies the statutory requirements.
How will you demonstrate that careful consideration has been given to the request – not only as required by the statutory rules but also in order to avert any accusations of discrimination or that the term of trust and confidence which exists between every employer and employee has been breached? You may wish to consider the potential business issues, discuss the arrangements with the employee’s manager, identify any impact on colleagues and ascertain whether or not there are any alternative ways to meet the employee’s objectives. Be prepared to explain to the employee fully and clearly your reasons for rejecting any proposals.
Trial periods should be used in appropriate situations e.g. where it is considered the arrangements could work but for good business reasons the employer feels unable to commit outright. The terms of the trial period and process for review should be carefully documented. The trial period should be for no longer than is needed to make a reasonable assessment of the proposed flexible working arrangements and must be carefully monitored, not being simply left to run after the agreed end date without further agreement.
Monitor the progress of requests to ensure the process does not stall or procrastinate. The statutory process envisages that a request will be dealt with within three months, including any appeal.
Keep clear records and monitor your responses to flexible working requests. If an employee does raise a grievance, which may include allegations of discrimination, deal with these promptly and properly. An inadequate response may increase the risk of litigation.
Flexible working requests can bring many advantages for employers, particularly in attracting and retaining a skilled and diverse workforce. However, any such requests must be carefully considered and the terms of any new arrangements properly documented to avoid difficult issues surfacing down the line.
