Flexible Working – fact or fiction? How to handle requests after 30 June 2014

The current situation.

The right to request flexible working is certainly not new, having been around for over 10 years. At the moment the legal right to ask for flexible working is not available to everyone by any means. You have to be an employee (not a casual or agency worker for example); you also need 6 months continuous service with your employer. Furthermore, at the moment you also have to satisfy various other requirements, including being a carer of a child or a dependant adult for example.

So, what is changing?

This is all about to change significantly. The right for an employee to request a contract change will be available as before to all employees with 6 months service. However the big change from 30 June is that no care commitments need be involved in requests after this date.

This is not just about going part time! The requests may involve a change to working hours; a different shift pattern or perhaps swapping shifts; going part time; even to work from another location – perhaps from home a day or two each week.

So, for example, an employee may request a move from working a 40 hour week over 5 days, to working four 10 hour shifts; or perhaps seeking to work mornings only to devote more time in the afternoons to a hobby or study course; or someone can request working part time as they approach their chosen retirement date. It need no longer involve a care commitment.

The new procedure.

Once a formal written request for flexible working is received, the Employer  should follow the new ACAS  guidelines –  including holding a meeting within certain timescales, allowing the Employee to have a Companion, and providing for the right to Appeal if the request is turned down. However the good news is that the current strict statutory timescales are also disappearing in June; it will be left for each employer to handle flexible working requests in “a reasonable manner” –whatever that means!

However it is expected that the request will be fully dealt with within a 3 month period of being made.

It is worth remembering that this is only about the right to “request” flexible working. This does not mean that every request can be agreed. Businesses have rights too you know! Customers have to be satisfied, costs kept under control, a service provided etc etc. Whilst the Employer does need to genuinely consider each request, if at the end of the day, the request does not suit the business; it can, and in reality should, be turned down.

When an employer receives more than one request, they are not required by the law to make value judgments about the most deserving request.  An employer should consider each case on its merits looking at the business case and the possible impact of refusing a request.

ACAS even recognises that sometimes it might not be possible to decide and in these instances an employer could get the agreement of the employees concerned to consider some form of random selection such as drawing names from a “hat” to decide – particularly if unable to distinguish between all the requests. It would be good practice to make this approach known to all employees from the outset in a flexible working policy.

If I grant one request, do I have to agree them all?

No, that is not the case! If one request is granted, and another comes in from someone else, this has to be looked at on its own merits. The fact that the first request was agreed demonstrates that the Employer is ok with the process overall, not negative. Also granting the first request means that the business case has changed which could well justify turning down the second one. Remember though to go through the various stages and not just flatly reject any requests, as this could still result in a tribunal complaint.

What’s not changing?

These changes mean that more requests for flexible working are likely to be made.

Whilst there are some big changes, a number of important aspects remain the same, including;

  • The request must be in writing
  • The request must contain certain specific supporting information
  • Only one request per year can be made.
  • If the Employer cannot agree the request, a meeting with the Employee is required.
  • The Employer should have a specific reason for saying no.
  • Employees should be allowed to bring a companion with them.
  • It would be good practice to offer an Appeal if the request cannot be granted.

Managers will need to be aware of these changes from the spring of 2014, and should be given guidance on how to handle a flexible working request. If a Manager is unsure about granting a particular request, case law suggests that a trial period should be considered.

Because more requests are likely to be received from women than men, this still opens up the possibility of the issue turning into a Sex Discrimination claim for the unwary.

Employers of all sizes should have a policy on how they will approach the requests to work flexibly from 30 June this year. Larger businesses should include training on this issue for their line managers.

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Occupation Health Reports – can employers rely on them when reviewing grounds for misconduct?

Employers are expected to obtain medical reports in a number of situations, often involving absence –  sometimes it’s about poor performance or some form of misconduct. In a recent case the Employer obtained a medical report to ascertain whether an employee had a disability.

In a worrying decision, the Court of Appeal has ruled that an employee may be disabled even though a report from Occupational Health stated that in their opinion, the employee was not disabled.

The case involved a council worker allegedly suffering from a stress related condition – one of the more problematic reasons for absence. The Employer obtained a couple of reports from an external Occupational Health (OH) provider which clearly stated that the employee was not covered by the (then) Disability Discrimination Act. This is now covered by the Equality Act.

So far so good…..

The man had had a number of absences from work, due to stress, often falling ill again soon after returning to work. It was accepted that his stress was work related.

He was eventually dismissed for misconduct following a period of suspension over bullying allegations, and brought various claims to Tribunal, including unfair dismissal, disability discrimination and a failure to make reasonable adjustments.

The Council argued, based on the medical reports, that the man did not have a disability; and therefore, amongst other things, they were not under a duty to make any “reasonable adjustments”.

The Employment Tribunal and The Employment Appeal Tribunal found in favour of the Employer, stating that they were entitled to rely on the content of the independent medical report – which probably reflects what most Employers would have done in the same situation.

However unfortunately for the Employer in this case (and for Employers generally I suggest), The Court of Appeal disagreed and sent the case back for rehearing in Tribunal.

The Appeal Court considered the OH report to be “threadbare”, with no reasoning provided to support its decision. The Court advised Employers to form their own opinion and not to merely follow OH advice without question.

This is a tough decision to be honest!  The Employer was essentially criticised for blindly following independent medical advice.

Guidance Note. Employers sometimes have to make a management decision based on medical information. It is not the Medical Advisors role to make the decision, only to offer advice. Management has to take responsibility for the final decision. In view of this decision, Employers should still obtain Medical advice first, but then objectively review it before making a decision – particularly if that decision is  to dismiss the employee.

It would now also be advisable to ask OH to justify their opinion, particularly when dealing with a suspected disability, which has a statutory rather than a medical definition.

Are your Managers and HR team up to speed with the latest employment law developments?

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For more information about this topic or on any aspect of Employment Law, feel free to get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk