How not to handle a flexible working request
Flexible working requests – the law
Before we look at some lessons to be learned around dealing with flexible working requests from a recent case, here’s a re-cap on the law:
Employees with at least 26 weeks’ service have a statutory right to make a request for flexible working. Employers should:
- deal with a request in a reasonable manner (including meeting with the employee to discuss it);
- notify the employee of their decision within three months (unless the parties agree an extension); and
- only refuse a request on one of 8 grounds set out in the legislation.
Click here to see our previous article for more about flexible working requests.
If the procedure is not followed or if the employee is not happy, they can bring claims against their employer for breach of the Flexible Working Regulations, and if the claim succeeds, the Employment Tribunal can order the employer to reconsider the request, and/or compensate the employee in such amount as the Tribunal considers just and equitable – up to a maximum of 8 weeks’ pay (currently capped at £489 per week).
King v Tesco (2017)
Mr King, a delivery driver employed by Tesco, made a written request to swap his Saturday shift for a Wednesday shift, to help with child care arrangements for his son. The request was refused and Mr King brought a successful claim against Tesco for breach of the Flexible Working Regulations. In its judgment, the Tribunal highlighted several areas where Tesco had gone wrong in dealing with the request:
1. Failing to be aware of, or following, company procedure
Managers at the store were unfamiliar with the company’s Flexible Working Policy, despite it being readily available on the company’s intranet. They did not check the policy, or seek guidance from someone more senior.
The Tribunal was, in particular, concerned about the evidence of one manager who said in his witness statement that he had a lot of experience dealing with flexible working requests, and had received management training on how to deal with them, but who said in his oral evidence that he had never dealt with a flexible working request before, had never seen the Flexible Working Manager Guide, and was not familiar with the company’s policy!
2. Losing the employee’s written request, and blaming the employee for the delay
Tesco lost Mr King’s original written application, and tried to explain their delay in dealing with it by blaming him for not providing a further copy when asked. The Tribunal found it was very clear what Mr King was asking for (or a short meeting would have been sufficient if anything had needed clarifying), and noted that Tesco’s own policy stated that a request did not have to be in writing.
3. Taking too long to deal with and respond to a request
When Mr King chased up his request, he gave a deadline for Tesco to respond. Tesco tried to argue that this was an agreement to extend the three month deadline for responding to his request. The Tribunal did not agree – they said that Tesco should have sought Mr King’s express agreement to an extension of the deadline if that is what they wanted.
Despite showing that they were capable of dealing with other matters in a reasonable time frame, Tesco took 4.5 months to deal with Mr King’s request.
4. Failing to discuss the request with the employee
Although Mr King was eventually called to a meeting, this was merely to tell him that his request was refused. The manager did not seek any input from Mr King or take time to consider any representations from him, which did not comply with the ACAS Code of Practice on handling flexible working requests (Tribunals are required to take the ACAS Code into account when it appears relevant).
5. Not offering a right of appeal
Mr King was not offered a right of appeal, even though the company’s policy and guidance gave a right of appeal, and this was also contrary to the ACAS Code. The Tribunal found that it was unreasonable for Tesco to have assumed that Mr King was content with the outcome and that they should have offered a right of appeal.
Whilst this decision was only at Employment Tribunal level, and therefore not binding on other Tribunals, it does provide a useful reminder of some of the pitfalls to be avoided when dealing with flexible working requests from employees, including making sure that your policies are up to date and that your managers are adequately trained in how to recognise and deal with flexible working requests. If your flexible working policy needs updating, or if you don’t have one, then we can help – just get in touch.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or en[email protected]).