New rules give employees the right to request flexible working, and juggling these alongside the needs of the practice could have practical implications
On 30 June 2014, the statutory right to request flexible working was extended to all employees with at least 26 weeks of continuous service. Previously this right was only available to staff with childcare or caring responsibilities. As part of this change, the statutory procedure for requesting leave was also replaced with a requirement to deal with requests in a reasonable manner and in accordance with a new ACAS Code of Practice. What will be the impact of these changes and what practical implications will there be for practices?
A statutory request can only be made by an employee (an individual who has entered into or works under a contract of employment). The right does not apply to self-employed contractors, consultants or agency workers, with the exception of agency workers returning to work from a period of parental leave. The employee must also have 26 weeks’ continuous employment at the date the request is made. Only one request may be made under the statutory scheme in any 12 month period. There is, however, nothing to prevent an employee from making additional informal requests. While the practice will not be obliged to follow the statutory procedure in response to an informal request, practices should be mindful that a refusal without appropriate consideration could give rise to discrimination claims outside the statutory flexible working scheme (see below).
A request made to the practice can only relate to a change in the times that the employee is required to work and/or a change to the employee’s place of work. Requests do not have to only be for permanent changes. An employee could request a temporary change. However, when making this request the employee would need to include the time period for which the employee is requesting the change.
What a practice should consider
The practice should consider a request as soon as possible after its receipt. If you are not able to approve the request straight away, arrange a meeting with the member of staff. The regime in place before 30 June 2014 provided that an employee could be accompanied at meetings by a worker employed at the same practice. While the new regulations do not provide for this, the Advisory, Conciliation and Arbitration Service (ACAS) has recommended that employers allow those making a request for flexible working be accompanied by a colleague at meetings relating to the request, including appeal hearings, and that the practice should tell the employee of this in advance of the initial discussion.
Practices should consider a request carefully, looking at the benefits of the requested changes in working conditions for the member of staff and the practice, balancing these against any adverse impact on the practice of implementing the changes. When considering any request, practices must not discriminate against the member of staff and so particular care must be taken when considering requests for flexible working on health grounds or for childcare reasons, among others.
Having said this, there is no need for practices to feel that they will be forced to accept a request for flexible working. Requests can be rejected on prescribed business grounds. For example, if the flexible working hours requested would have a detrimental impact on the quality or performance of the service available to patients in the practice, it may be possible for a practice to reject the request. In this instance a practice may wish to discuss alternative arrangements with the employee concerned rather than reject the request outright. If the request is ultimately rejected, it is important that the practice provides the employee with the right to appeal.
Practices must bear in mind that all requests, including any appeals, are considered and the procedure completed within a period of three months from receipt of the original request. An extension of time may be agreed with the member of staff. While there is nothing in the legislation which stipulates that any agreement made between the practice and the employee is made in writing, it would be sensible for practices to adopt this practice in order to avoid confusion in the future.
ACAS advises that an employer may want to consider trialing the employee’s request rather than rejecting it outright. This may be useful for practices that are unsure of the impact that the flexible working arrangements would have on its day-to-day operations. Putting in place an agreed review date would be a sensible option in this situation. This will encourage both parties to discuss the sustainability of the arrangements and that any sensible amendments are put in place.
If the practice and the employer decide to adopt the flexible working arrangements the practice will be obliged to complete what is known as a ‘section four statement’. This statement documents the contractual changes to be made to the employee’s contract of employment.
ACAS has issued a code and guidance for employers to follow when considering a request. The guidance suggests that where flexible working arrangements within the business do exist, meaning it would be difficult to agree a further flexible working request, employers could legitimately ask other members of staff to volunteer changes to their working arrangements to accommodate the request. This is designed to balance competing needs from staff and recognises that those needs may change over time. This does not mean that the practice must make changes to existing arrangements and is good evidence that the law recognises that there is a saturation point, beyond which further flexible working is not possible.
Practices should be mindful of potential discrimination claims when considering a request for flexible working. This may be relevant where a request arises as a result of childcare commitments or a disability. Discrimination claims represent more risk for practices as the potential compensation can be much higher, and a finding that a practice has discriminated against one of its employees can reflect negatively on a practice, particularly if the claim has attracted media attention.
Advice for employers
This change has been well publicised and practices may experience an increasing number of requests which they will have to consider. Many organisations find accommodating flexible working requests challenging and are concerned over the risks of rejecting them. However, practices should remember that the need to provide continuity and the need to supervise or manage other members of staff may be legitimate grounds to turn down requests. Here are our tips for dealing with flexible working requests:
- Ensure that a request is dealt with reasonably. When in receipt of multiple requests simultaneously the practice should consider each request on its merits in the context of the practice’s commercial and practical needs. It is fair to consider the requests in the order in which they are received.
- Be mindful of flexible working arrangements already granted when considering further requests. It may be more difficult to alter an already agreed flexible working arrangement than coming to a compromise with a number of employees who have submitted requests at the outset.
- Approach requests with an open mind and if the practice does not feel they can be accommodated, consider whether there is an alternative option or compromise available which may suit both parties. Where there is any evidence, such as patient feedback, that flexible working is having an adverse impact on the service provided by the practice, this can prove helpful should a practice wish to reject a request.
- Where requests are agreed practices need to be careful to document these appropriately and, in particular, be clear that the change is a permanent one (if this is what has been agreed) but that days and hours of work may need to vary from year to year. It can also be useful to discuss the expectations on a part-timer to attend any events outside of working hours, such as practice meetings, and how this may work taking into account any restrictions the individual may have as a result of their personal circumstances.
Sarah Want is an employment lawyer specialising in healthcare at Veale Wasborough Visards. She regularly presents to practice managers on key employment law issues affecting the healtchare sector and is a member of the Employment Lawyers Association.