Flexible working – Guidance from HPC

Gone are the old days where everybody works 9am to 5pm, Monday to Friday which brings challenges to businesses and how they manage flexible working requests within the law.  As the recent case of Mr A Gregory v Royal Mail shows, the mishandling of flexible working can be costly, with the individual employee being awarded £22,000 for unfair and constructive dismissal.  This figure, of course, does not include the cost of defending the case, which can run into the thousands and the costs could have been substantially higher if he had been successful in a claim for discrimination or breach of regulations.

Mr A Gregory v Royal Mail

In the case of Mr A Gregory v Royal Mail, Mr Gregory’s manager had agreed that he was not required to work at weekends due to childcare needs in 2012, which was confirmed in writing to him, but his overall contract of employment was not changed.  Royal Mail wanted to introduce changes to working practices in the location Mr Gregory worked in 2015 and started to consult with the employees over their preferred working pattern.  At the time, Mr Gregory was on annual leave and his union representative completed it on his behalf saying he could work 3 Saturdays a month.  On his return from annual leave, he objected to this and submitted a new flexible working request, which was rejected on the grounds of the burden of additional costs, an inability to reorganise work amongst existing staff or recruit additional staff, a detrimental impact on performance and planned structural changes.

Mr Gregory went off sick with stress and on his return to work the Company admitted that his hours had changed from his original working pattern, so he was not required to work on a Saturday.  Only a month after his return, royal Mail sent a letter to Mr Gregory saying that his working pattern would change and he would be required to work Saturday.  Mr Gregory resigned from his position and claimed constructive and unfair dismissal.

So, how can companies avoid an employment tribunal claim when dealing with flexible working requests?  We would recommend you take the following steps if you receive a formal request:

• Check to see if the employee is eligible to make a request under the Flexible Working Regulations, including if the employee has made any other requests in the previous 12 months
• Respond to the employee within 3 months of the request being submitted
• Invite the individual to a meeting to discuss their request. Under the Regulations, the employee does not have the right to be accompanied to the meeting, but in the interest of fairness and in line with ACAS, we recommend company’s to consider allowing this
• Hold the meeting with the individual and have a discussion with the employee over whether the request can be accommodated
• If you are going to refuse a request for flexible working you need to explain clearly the reason for the refusal and it should be based on one or more of the following 8 reasons:

1. the burden of additional costs,
2. an inability to reorganise work amongst existing staff
3. an inability to recruit additional staff
4. a detrimental impact on quality
5. a detrimental impact on performance
6. a detrimental effect on the ability to meet customer demand
7. insufficient work for the periods the employee proposes to work
8. a planned structural change to your business

• You need to confirm in writing the outcome of the discussions and whether the flexible working request has been accepted. In cases where it hasn’t been agreed, you should offer the right of appeal.
• If the employee appeals the decision, appoint another manager who hasn’t been involved in the case and invite the individual to a meeting to discuss the grounds of their appeal

If you have any questions regarding what you should and shouldn’t do in relation to flexible working requests, please do not hesitate to contact the HPC team.

T: 0844 800 5932

E: contact@highperformanceconsultancy.com

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