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Conditions of Service - Flexible Working

ARTICLE ORIGINALLY PUBLISHED DECEMBER 2007

READER'S QUESTION

I am aware of the increased rights of staff to request flexible working but I also need to make sure my Busness is staffed at busy periods. A member of staff has asked to go part time so that she can study photography at college 2 days a week. How seriosly do I need to consider the request?

ANSWER

You are right the Government have championed what they call the "worklife balance". Apart from rights to request flexible working consider the extension of maternity leave, increased holiday entitlement and paid paternity leave as part of the same theme.

The Law

The Employment Act 2003 introduced the right to request flexible working for some employees. In 2007 this was extended to include carers of adults. Requests can be to amend the hours of work, the times of work and the place of work.

Who can apply for flexible working?

Since 2003 parents of young and disabled children could apply for flexible hours. This was extended to cover adults, with caring responsibility, in 2007. Staff have to have 26 weeks continuous service to be eligible to apply. The care can relate to partner, spouse, or brother/sister in law or someone who lives at the same address.

Upon receiving such a request there is a prescribed process to follow and a number of business related criteria on which a request can be rejected.

Employees have a right to go to Employment Tribunal if the request is unreasonably rejected so beware don't reject requests without a full consideration.

What is flexible working?

Typically the request relates to a reduction in hours to move to part time working. However, flexible working can encompass job sharing, term time working, start/finish times, annual hours where staff work x hours per year flexibly.

What is the process?

There are a range of criteria which must be met but the key features are:

  • The request must be made in writing.
  • The employee must spell out how any adverse effect on the business may be overcome.
  • The applicant must indicate when they would like the change to take place.
  • The employer must meet the employee within 28 days to discuss the application and the employee is entitled to be accompanied at the meeting.
  • Within 14 days of the meeting the employee must be advised if the request is agreed or rejected; or some other form of flexible hours offered.
  • The employee then has 14 days in which to appeal against the decision.

What should the salon do?

You must never reject a request out of hand without following the process above. Remember, the only other option for the employee might be to resign and you could lose a valuable employee. Similarly, we know the turnover rates in the industry are high and you may well be able to recruit an experienced part time employee to solve the problem.

However, there are a whole range of businesses related criteria which employers can use to decline any request, these include:

  • Additional costs.
  • Inability to meet customer demands.
  • Inability to cover the hours of the business.
  • Inability to recruit staff to meet the surplus hours.

Helpful Hints

The bottom line is that the business may have to show that it has seriously considered the request. The most obvious is to advise the employee that you may agree to the request subject to your being able to appoint a suitable person to cover the hours the existing employee wishes to relinquish.

Clearly the more prescriptive the request, for example, "I don't want ot work in school holidays, or any late evenings and never on a Saturday." The less likely it will be that the vacated hours will be attractive to potential applicants. This is where you may persuade your existing employee to be a little more realistic and revise his/her original request.

There is not a necessity to make any special arrangements when you advertise, just follow your normal route. If you can't recruit then you can legitimately reject the request.

The employee may have no option but to leave but, even then, you might still be able to offer them, albeit periodic hours on the basis that, at some point in the future they may be able to offer you some additional hours.

The employee can take his/her case to Employment Tribunal either because you failed to follow the statutory procedure or your refusal is unreasonable.

The tribunal can order that the request is reconsidered or award compensation amounting to up to 8 weeks pay. However, you should be wary as the potential costs are far greater if the employee persuades the Tribunal that the refusal was based upon some form of discrimination eg, sec or race.

The Answer

To go back to the original request, this employee is asking for flexible hours to persue training for, I assume, a new career. There is no indication the request is to give her time to care for her children or a dependant adult. Therefore, she has no legal right to request flexible working and, in theory, you don't need to give it any special consideration.

However, she may be a wonderful member of staff and you might wish to try and retain her. The choice is entirely the employers.



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