Requests for flexible working: How do I handle it?

By Michelle Ryan
19 October, 2018

Introduction
Employers want a well-educated and flexible work force that allows their companies to be competitive and employees want the flexibility that enables them to balance work and family life. Advances in technology have led to a changing working environment where remote working is becoming both increasingly accessible and popular, with the result that requests for flexible working arrangements are becoming more common. Flexible working has also been known to increase productivity and retain key employees in the workforce.

In the UK, the provisions of the Employment Rights Act 1996 provide a statutory right for employees to ask their employer for a change to their contractual terms and conditions of employment to work flexibly, provided they have 26 weeks service. Such a request can be made every 12 months. There is no Irish equivalent to this provision, other than a statutory right to request changes to working hours or patterns of work, which is limited to employees returning from parental leave. Otherwise, flexible working arrangements are at the discretion of the employer.

Flexible working patterns are those which alter what might be seen as a traditional work pattern, in other words working a set number of hours per day, five days per week. There are many ways an employer can offer flexible work arrangements, including, at its most basic, varying start and finish times within certain limits (flexitime), compressed hours, in which the same number of hours are worked per week but in fewer days, and job sharing. Other forms of flexible working patterns include part-time and temporary work and working at or from home.

There is no absolute legal entitlement for any employee to be granted flexible working arrangements or to work from home. However, there is a view that an employer should give consideration to each and every request from an employee to be permitted to work flexible arrangements.

Dealing with requests for flexible working
While there are no legislative provision that governs flexible working specifically, there is a Code of Practice on access to part time work, issued by the Workplace Relations Commission and one on Lone Workers, issued by the Health and Safety Authority which deals with the practicalities of working from home. Furthermore, various areas of law and insurance issues arise when considering putting in place home working arrangements. Codes of Practice do not have statutory effect but they are of strong persuasive influence if relied on before a Court or Tribunal. In the UK, ACAS has produced a useful code of practice which sets out the range of issues that should be taken into account when considering requests to work flexibly.

At a minimum, employers are advised to put in place a written policy setting out how requests for flexible working arrangements will operate and setting out terms and conditions for this policy. Any employee applying for flexible working arrangements should be required to complete a request form and should sign their acceptance of the terms and conditions of the flexible working policy.

It is also important that the employer reserves the discretion to refuse a request for flexible working. There may be some instances where business needs or the requirements of a particular role will make it impractical for that position to be carried out on reduced hours or remotely. Employer should be in a position to objectively justify a refusal to facilitate flexible working for any particular employee. Any refusal should be on valid, objective operational reasons.

In considering a request for flexible working, employers should consider the following factors:

1. The personal needs of the requesting employee, for example, is it a request for reasonable accommodation related to a disability. In considering any request you cannot discriminate against an employee.
2. The costs associated with the proposed arrangement.
3. Additional resources and cover need to meet flexible working arrangements and other business/operational needs of the Company and the effects of granting the request on those needs.
4. The need for and effect on supervision.
5. The period of time covered by the request to work flexible arrangements. For example, it should be clarified whether the employee envisages working the revised arrangement indefinitely or for a short term period. It should also be considered whether the particular request will be in respect of certain days of week or for certain periods of the day, for example in the morning.
6. How the applicant’s revised hours will fit in with the needs of the job.
7. Any detrimental impact on the ability to meet customer and organisational needs.
8. The inability to reorganise work amongst existing staff and the inability to recruit additional staff.
9. Will there be sufficient work for that particular employee during the periods when the employee proposes to work.

An employer should keep notes to show that any request was fully and objectively considered as such notes may prove invaluable if any challenge is later brought by an employee.

In respect of flexible working, if having taken the various considerations into account, it is expected that there will be a number of substantial changes to the employee’s work structure, hours and/or remuneration then you are advised to put in place a new contract of employment or an addendum to the original contract which should be signed and dated by the employee.

Once granted, any flexible working arrangement should be stated in the relevant documentation that the arrangement is subject to on-going review by the Company, based on prevailing business conditions/needs and that you reserve the right in the letter/contract to reverse the arrangement and bring the employee back full-time if business needs dictate that is necessary or where for example an individual granted remote working is required to be more office based. This should be built into the policy and contractual documentation.

From a practical perspective, the longer an employee has the arrangement, the harder it is to reverse it but it is still possible once you have reserved the right to do so.

In some instances, both parties may agree to a trial period in order to see how the proposed flexible arrangements would work in practice before a final decision is made.

If the employer is unable to grant the proposed changes to working arrangements, this should be confirmed to the employee in writing. The policy should deal with minimum time periods within which the employee may re-apply for flexible working.

Conclusion
Flexible working is certainly a mechanism that many organisations can benefit from however there are a number of legal issues which need to be considered fully in dealing with any individual requests.

This document is for general information purposes only and does not constitute legal or other professional advice. Specific legal advice should be sought on any particular matter.

For more information on the content of this insight contact:
Michelle Ryan, Associate Solicitor, michelle.ryan@rdj.ie, +353 21 2332883