HR Expert: Refusing a flexible working request & flexible working changes

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A client has contacted me about refusing a flexible working request. The employee is a top performer, but they don’t feel that they will be able to perform to their usual high standards or produce quality work if working exclusively from home. Can they refuse the request?

Flexible working requests can be refused for one or more of the following reasons.

• Burden of additional costs.

• Detrimental effect on ability to meet customer demand.

• Inability to reorganise work among existing staff OR recruit additional staff.

• Detrimental impact on quality OR performance.

• Insufficiency of work during the periods the employee proposes to work.

• Planned structural changes.

The refusal should be based on facts and evidence and explained to the employee. Doing so could help your client avoid an appeal or even a claim that the refusal was based on incorrect facts.

This was the claim brought in Wilson v Financial Conduct Authority (2024), when an employee was unhappy with their employer’s refusal to approve their request for exclusive homeworking. This request was refused because there would be a detrimental impact on both performance and quality of work, as the employee would miss face-to-face training sessions, departmental away days, and meetings. They would also not be able to effectively coach new team members nor input into managerial strategy and engage in collaboration with colleagues.

The employee brought claims that the process wasn’t completed within the statutory three-month timeframe and had relied on incorrect facts in its refusal. The employment tribunal found that facts the employer relied on were true, and it was reasonable for them to be relied upon. It agreed that it would be more difficult for the employee to carry out managerial duties from home, especially as the technology available wouldn’t enable the employee to keep up with “…the fast-paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics.” They were however awarded £643 (a week’s pay, capped at the statutory maximum) in compensation as the employer was 21 days late in finalising the process.

If your clients situation with their employee is similar to that outlined above, it may be that refusing the request would be a reasonable thing to do. It would be best to encourage your client to find similarly detailed reasons of why their employee cannot always be at home.

Whilst on the topic of flexible working, you should also let your client know of some important changes coming up in this area.

Currently, employees with 26 weeks service have the right to request flexible working. From 6 April 2024 significant changes are being to this right.

The Flexible Working (Amendment) Regulations 2024 Regulations and an updated Code of practice are waiting for final parliamentary approval, expected in February. Until then, changes can still be made to these regulations, although this is unlikely. It has however been confirmed that from 6 April 2024, there will no longer be a service requirement for making a flexible working request.

The other changes set to come in are:

• Employers will be required to suggest alternative options when refusing a request.

• Employees will be able to make two requests in any twelve month period.

• The response time to deal with a request, including appeal, will be two months.

• Employees won’t have to set out the effect their requested arrangement will have on the business.

Our team of expert consultants have a wealth of experience and can also provide a written consultancy service to support your practice, like having your very own tax and VAT department.

Why not see what My VIP Tax Team can do for your practice, call 0800 231 5199 or to find out more

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