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Prior to July 2014, the right to request flexible working was only available to employees who had 26 weeks’ continuous employment and cared for children or adults. The child had to be aged under 17 years (or under 18 years if disabled) and the employee was their mother, father, adoptive parent, guardian, foster parent, or the spouse, civil partner or partner of these people. Employees who were the spouse, civil partner or relative of, or who lived at the same address as an adult aged 18 years or over who required care could also make a request.
From July 2014, all employees with 26 weeks’ continuous employment are now able to submit a flexible working request. This has opened up the opportunity to many more people.
Flexible working eligibility
A request for flexible working can only be made by an employee and not by self-employed individuals, contractors or agency workers. As mentioned above, employees must have at least 26 weeks’ continuous employment. The final condition is that the employee cannot have made a flexible working request in the past 12 months, counted from the date on which the employee submitted their last request.
However, even if an employee does not satisfy these requirements, they still could submit an informal flexible working request. An employer does not have to follow the procedure detailed below in relation to these requests but, if it does not give the request adequate consideration, then an employee could have a claim, such as discrimination, in an employment tribunal.
Employer obligations
When an employer receives a request, they have three main obligations: firstly, to deal with it in a reasonable manner; secondly, to notify the employee of its decision (including, where necessary, an appeal decision) within three months of the request being made; and thirdly to only refuse the request on a proper ground (as stated in the regulations).
The Advisory, Conciliation and Arbitration Service statutory code of practice and guide provides guidance in relation to handling a request “reasonably”. This guidance must be taken into account by tribunals. It states that employers must discuss the request with the employee as soon as possible after receiving it. During these discussions, the employer should make the employee fully aware of the impact that the changes requested would have on their terms of employment — for example, if there would be any reduction in salary, bonuses or pension entitlement.
Employees should be allowed to be accompanied by a colleague or trade union representative to these meetings, which should be held in private. When considering the requests, employers should look at the benefits of the requested changes for both parties and weigh these against any adverse business impact. If the employer has any doubts about the flexible working arrangement, it is good practice to arrange a trial period in which both parties can see if it suits them. If, after thorough consideration, the employer decides to reject the application, a right of appeal should always be allowed and this appeal should be conducted with a different and, where possible, more senior officer in the company.
If the employer finds that they will not be able to deal with the request and any appeal within the three months, they should agree with the employee for this period to be extended. Ideally, this should be done before the three-month period has expired.
Disputes over flexible working
We have seen an increase in claims arising from flexible working requests since the law has changed. One major factor in these claims is that the compensation that employers can be ordered to pay for breaching the rules is relatively low. This means that many flexible working request cases are accompanied by claims for discrimination. For example, employees claim that being required to work from 9am to 5pm has a discriminatory impact on more women than men because of a traditional view that women carry a greater burden of childcare responsibilities. These claims can be more valuable than a flexible working claim but, in our experience, sensible employers have come out on top.
Problems for pharmacy
Depending on the pharmacy opening hours, certain pharmaceutical providers may find themselves receiving more flexible working requests than others. If a pharmacy opens seven days a week over long hours, there is more scope for employees to be able to work flexibly than a pharmacy that only opens 9am–5pm, five days a week, and employers should take this into account when considering requests.
The nature of the pharmacy profession means that adequate staffing is of the utmost importance and employers must carefully consider this. Employers should not be afraid to refuse requests where it would clearly have an adverse impact on the service provided to customers and patients.
Advice for those applying for flexible working
Prior to submitting the request, discuss your ideas with your employer to get an idea of the arrangements that would be available. Employees are limited to submitting one request under the statutory procedure every 12 months so should think carefully before submitting requests.
Once you have submitted the request, you should be open to alternative suggestions from your employer as to how to make the arrangements work best for both parties. It is a good idea to request a trial period to see if the arrangements work as envisaged.
If your employer fails to deal with your request reasonably, within the relevant period, rejects the application on an improper ground, or bases its decision on incorrect facts, then the employee can bring a claim in the employment tribunal within three months of the rejection. Compensation can be awarded up to a maximum of eight weeks’ pay.
