FLEXIBLE WORKING - 24.01.2008

Why care is needed with flexible working requests

The family facts

The employee, a man, was married and had a daughter aged five. He worked in a warehouse whilst his wife had the position of general manager in a large company. She was the main earner.

He wrote to his employer asking if he could alter his hours of work from that of alternating early and late shifts to permanent days, working between 9am and 3pm. He explained in his letter that the reason for his request was to enable him to drop the child off at school and pick her up in the afternoon. His request was rejected without going through the statutory procedure (see The next step).The employer simply wrote to him, saying they could not accept his request but without giving a reason why.

Tribunal finding

So, what were the implications for the employer? The employee by this time was very upset. He resigned and went to tribunal claiming: (1) the employer had failed to deal with his request correctly under the Flexible Working Regulations by not specifying the reason(s) for rejecting his request; and (2) constructive dismissal because of they way they had handled his request. He said they did not consider it seriously. But did he win? On the face of it he seems to have made a valid request. After all, his child was under six and the reason for the request was to enable him to care for the child.

Invalid request. The tribunal found that this was not a valid request and the employer, therefore, was under no legal obligation to consider it within the procedure laid down by the law. So he lost this claim. Furthermore, they had not fundamentally breached his contract by not agreeing to his request so his constructive dismissal claim also failed. A good news case for employers.

A proper request

So why wasn’t it a proper request? Firstly, the employee did not specify the date for the change to become effective. He just left it open, presumably to be finalised at a later stage.

Secondly, he did not explain the effect, if any, he thought the proposed change would have on the business. Furthermore, he should have explained how, in his opinion, any effect could be dealt with. In other words, if the employee is going to cause disruption to the business, they have to put forward a solution to minimise it.

Thirdly, he overlooked the requirement to state whether a previous application had been made and, if so, when. The law states that an employee cannot make a subsequent request within twelve months of a previous request.

Tip 1. There’s a strict procedure for both parties to follow so there’s an onus on the employee as much as you to get it right.

Tip 2. To minimise the risk of a tribunal claim, explain why the request isn’t valid and ask the employee to resubmit it in the proper format, and then consider it seriously in accordance with the Regulations. If you follow the correct procedure and have the proper reason(s) for rejecting the request, there’s nothing they can do under the Regulations.

The next step

For details on the flexible working procedure, visit http://personnel.indicator.co.uk (PS 10.02.02).