Flexible working and grounds for refusal

16 November 2015

Peninsula make some interesting points about the importance of considering flexible requests properly.

With thanks to Peninsula for the following observations:

Although there is a list of prescribed grounds for legally refusing a flexible working request, a change in the law threw an extra consideration in the process for employers which cannot be ignored.

Originally, the right to request flexible working was a family related right – in order to qualify to make a request, it was a criterion that the employee had to be a parent of a child under a particular age or have caring responsibilities and the reason for the request had to be in relation to providing the care. However, this criterion was removed in June 2014 and the statutory right to make a request was made available to all employees with 26 weeks’ service.

Because of this, anyone can make a request to change their working patterns for any reason. This means that a request may be made by an employee with a disability, and the change they are asking for may fail to be considered as a reasonable adjustment. Employers have a duty to make reasonable adjustments for a disabled employee.

The result of this is that the refusal of a request for flexible working from a disabled employee may constitute a failure to make reasonable adjustments for that employee. The employee would be able to make a claim under the Equality Act 2010 for disability discrimination. It is therefore necessary for you to ascertain at the start of the process whether the request is being made in relation to the duty to make reasonable adjustments under the Equality Act.

In general terms, one or more of the following specified grounds for refusal must apply for the request to be legally refused: burden of additional costs; damaging effect on the ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; damaging impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.

The grounds are therefore broad but it is important to consider the request properly because the employee is able to make a claim to tribunal that the request was refused and none of the specified grounds apply.