10 things you really need to know about the new flexible working law

Blair Adams

This is a guest post written by Blair Adams of DMH Stallard and specifically aimed at my SME readers although anybody who employs staff should give it a read. To read more pieces written for SMEs by Blair click here.

Here are 10 tips for dealing with flexible working requests.

1. Remember that employees have the right to request a different working pattern, not a right to have it.  It’s probably best to remind employees of that at the beginning of the process.
2. There are eight statutory reasons for refusing a request and they are broad enough to encompass most situations.
3. Employers now have three months in which to respond to a request and can use that time to assess what the impact of flexible working might be.
4. Receiving a flexible working request can present an opportunity for negotiation with an employee.  For example, you might give a preliminary indication that their original request is unlikely to be granted, but that a different request might be accepted.
5. The immediate penalty for not dealing reasonably with a flexible working request is relatively small: an employee can claim up to eight weeks pay at a tribunal.  But worse lies in store: constructive dismissal and (indirect) discrimination claims are commonly linked to the poor handling or unreasonable refusal of flexible working requests.
6. Having a blanket refusal policy is likely to be indirectly discriminatory against women because it is probably still the case that women in the workforce generally bear a greater share of childcare responsibilities and need flexible working arrangements to help them deal with childcare.
7. If you receive multiple requests, picking names out of a hat isn’t a good idea.  Although ACAS suggest that it might be an appropriate tie-breaker if you receive two very similar requests. I suggest that it’s always better to try to find some real differentiating factor between them.
8. “First come, first served” doesn’t apply.  If A and B work in the same team and you agree to A’s flexible working request, you cannot reject B’s request simply because A got in first.  You need to be able to justify the rejection by reference to the eight statutory reasons.
9. If A is a single male who wanted the flexibility so that he could fit work around training for Ironman triathlons and B is a working mother, there is the potential for B to bring an indirect sex discrimination claim even if you reject her request for a statutory reason.  It would be something of a test case, but few employers want to have a test case.  Better to try to work out a compromise solution involving both of them.
10. Try to manage future expectations.  New working patterns agreed as a result of a flexible working request have contractual force and employees whose requests are accepted tend to perceive that the arrangement is absolute and permanent.  Manage their expectations by making it clear in your policy, and when you agree to a request, that you might have to review things in the future if other employees in the business make flexible working requests or if the circumstances in the business change.