Gateley : Top tips for handling the flexible working request process – and what not to do

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Last week's blog looked at the legalities of flexible working requests. This week we look at how to successfully handle the process, sharing our key tips while taking a look at what you should avoid doing.

1. Consider a trial period or alternative flexible working arrangements

Take a 'can do' approach to flexible working requests. While you may believe that your concerns about the consequences of accepting a flexible working arrangement are justified, if you don't give the flexible arrangements a go, how do you know for sure that those concerns will materialise? At the very least be proactive and open minded in considering alternatives. Consider a trial period of, say, three months with the employee working the flexible working arrangement. Keep it under regular review throughout that period to see if any of the snags you were worried about at the outset prove to be valid.

1. Open communication works both ways

Communication is especially important if you are going to be unable to accept a flexible working request. Simply saying no without providing a reasonable explanation will not only breed resentment, but could lead to you facing an Employment Tribunal claim - remember that such claims can now be brought without the employee having to pay a fee. Equally, even if you are not in a position to agree with an employee's flexible working request, more often than not the employee will appreciate that you have taken the time to sit down and consider their request properly, explained your concerns and considered possible alternatives.

1. Keep a paper trail

It is essential to document the process you have followed and any actions that have been taken as a result of a flexible working request. In particular, you need to ensure that any business reasons for refusing the request fall into one or more of the specified grounds (see these outlined in last week's blog here) and that those are supported by evidence, not simply based on assumption. While an employee will often only choose to take legal action as a last resort, if they do so and you are unable to evidence your process and reasons for refusal, even if you have legitimate reasons for refusing the request, you are likely to lose the claim.

1. Do not predetermine the outcome

This stands to reason! It's always worthwhile considering trying the arrangements on a trial basis to give both sides the opportunity to properly assess their impact, as above. If you do this, and obtain strong evidence that the arrangements have had a negative effect, then you will be justified in then informing the employee that you are unable to continue with those arrangements on an open-ended basis and requiring them to return to their previous working arrangements, with less risk of a potential claim arising as a result.

And what not to do…

Do not reject flexible working requests out of hand. It's important to ensure that this isn't evidenced in any of the paperwork created about a request. If you have ignored the request completely, handled it in an unreasonable manner, or do not have legitimate grounds to refuse the request, should the employee have more than two years' service, then they may decide to resign and seek to claim that their resignation amounts to a constructive unfair dismissal.

Of greater concern and risk is where the reason for the employee's request is linked to childcare commitments, particularly where the employee is female (because it is easier for them to establish that the refusal indirectly discriminated against them on the grounds of sex), or where the reason for the request is following medical advice and the employee has an underlying long-term health problem that is impacting their ability to attend and perform work regularly. In either of these two scenarios, refusal of a request carries a much greater risk of the employee pursuing a claim of indirect sex discrimination or disability discrimination.

Both of these claims, if successful, can lead to awards of compensation for injury to feelings, as well as compensation for any lost earnings (which might arise if the employee has resigned as a result of a refusal of the flexible working request). Remember that there is no cap on the amount that an Employment Tribunal can award in successful discrimination claims, and even an injury to feelings award which is in the lower band, could be up to £8,400. Always take legal advice before dealing with any difficult cases.

The bottom line is that communication and a positive approach will ultimately go a long way to reassuring your employees that you respect and value their input and well-being at work, even if you are unable to agree to their request.

This blog post was written by Paul Ball. For further information, please contact:

Paul Ball, partner, Employment

T: 0113 261 6793

E:[e-mail]