New changes to flexible working rights

New changes to Flexible Working Rights came into force on 30th June 2014 which is designed to simplify the request process for both staff and managers. Employers will now have to consider applications for all staff that have worked over 26 weeks in the practice, regardless of whether they are carers or look after children. It is expected that these change will benefit millions of employees, and whatever the reasons for requesting a new flexible working pattern, your staff will have the opportunity to now find it easier to balance their home life with your practice’s business needs.

With all this in mind, I thought it would be the right time to recap on the process, some basic steps for applying & dealing with requests, and some situations you may face when dealing with Flexible Working applications.

Making (and dealing with) Flexible Working applications

The employee writes to the employer requesting the changes to the working conditions that they would like, the effect it will have on you as an employer, how such an effect could be dealt with and when they would like this to come into effect. The employee must state in the request that it is a statutory request and if & when they have made a previous application for flexible working.

Employees must be eligible to make a statutory application based on set criteria - if they have worked continuously for the same employer for the last 26 weeks and have not made a request in the last 12 months, as only 1 can be made per year.

To refuse the application, the employer can only do so on one or more of the following grounds:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to your business

Whether successful or not, you must inform the employee in writing as soon as possible. If the request is accepted, then you need to discuss when and how the changes will begin.  If the application is rejected, then you must provide the reason(s) in writing, and allow the right to appeal.

The overall process from getting the application to making a decision (including any appeal made) must be no longer than 3 months, unless the issues are complex and an extension has been agreed with the employee.

Flexible Working  Q&A’s

I have a staff member who works 10 hours a week. She has a verbal agreement of flexibility of hours which was made with the previous Practice Manager over 10 years ago.  She regularly makes shift swap requests, which make it hard to manage, and none of the other staff members have the same kind of flexibility. Could I decline these regular swaps?

It would be worth discussing why she wants to work different hours all the time. You can still review this long standing arrangement if it is something that is no longer in line with business needs.

You could request that she keeps to some set working hours if they are difficult to manage (and it is affecting the business), but you must first explore the reasons why she needs more flexible hours and if they are to do with a situation outside of work that is set to continue e.g., caring responsibilities or childcare then you could request that she puts in a formal flexible working request.

If you reject this request, then you need to ensure that you do so for clear business reasons, as listed above.  If permanent changes are incorporated, then this is classed as a variation to the main contract terms and must be confirmed in writing and kept in the employee’s personal records for reference.

Changes can also be made on a temporary or a trial basis, with a review period to ensure that the new arrangement works for both parties before being implemented permanently.

I have a receptionist working in the practice who wants to reduce her hours and change from working on a Friday PM, to a Wednesday PM, whereas we would like her to continue working her current pattern. Does she have the right to say which day she wants to drop, or can we say which day suits us?

The individual can make a request to change/decrease their working hours, however if this request does not fit in with the business needs of the practice, you do not have to agree to this change. It is advisable to review the request then arrange to meet with the individual to discuss the options. It may be that you can support the reduction in hours, but not the days of the week. One of your options is always that you can leave things as they are if there are clear business grounds for doing so.

A member of staff has asked if they can work flexible hours - she is part of a team that have set working patterns that they have all agreed; she has no young children and is not a carer. Am I allowed to refuse this request, as reception staff are not allowed to change their hours and I am not clear what the criteria or what the procedures are?

In its simplest form all employees, regardless of whether they are a parent or a carer, now have the statutory right to request flexible working, and the employer must have a genuine business reason for rejecting any received written applications. Basically, all requests must now be properly considered. A request can still be approved or denied, there just needs to be a rational reason for the decision as listed above.

Therefore, there are two options:

1. Refuse the request - if the employee does not meet the eligibility criteria then you do not have a legal duty to consider her request.

2. Allow the employee to apply for flexible working using the basic steps (listed above) and allow or refuse the changes requested using clear business grounds.  If agreed, then agree a date for implementation.  As with any variation to contract terms, please ensure that you document the meetings and confirm the decision formally in writing.  This is then recorded on the employee’s personal file.

Further guidance from ACAS in relation to the Code of Practice on Flexible Working can be accessed at ACAS 

A staff member is on maternity leave - she has requested to extend this for an extra 8 weeks, after her agreed 52 weeks.  We have agreed to this, but now she wants to work 1 day per week when she comes back, rather than 2. Can we just terminate her employment if we cannot agree to this?

You will need to ensure that both you (as employer) and the employee have followed the procedural steps, and that when making your considerations, there isn’t any inadvertent discrimination, by ensuring that the refusal of the request is based on business grounds.  It is always best to look at the situation objectively and try to ensure that the decision you make is reasonable.

If you have legitimate business reasons for making the decision, and after discussions with the individual she is not in agreement with your decision to refuse, then you can continue to insist that she works her usual days.  This carries a business risk, however.  If the employee continue to work under the new terms without protest, then after a reasonable period has lapsed (a 'reasonable period' is likely to be measured in months), they can be deemed to have accepted the decision.

The employee may treat the breach as bringing the contract to an end, in which case they may leave the practice. In such circumstances, the individual potentially may claim constructive dismissal.

If the employee works under the new terms but under protest, there would be no deemed acceptance and the employer would remain in breach of contract, running the risk that the employee could resign and claim constructive dismissal.

We have received a flexible working request from a member of staff currently on maternity leave. We have refused this on what we are confident are sound business reasons. If she appeals, we plan for two of the other partners to consider the appeal. Do they have to meet with her, or can they consider her appeal or any alternative she may suggest without meeting her.

If the employee does appeal, it would be advisable for you to meet with the GP partners to discuss the appeal and any alternative solutions.  Then invite the individual to attend a meeting at which her appeal will be discussed.  Alternatives would need to be discussed at the appeal meeting, and the outcome of the appeal followed up in writing.

I have a member of staff who has given 4 weeks written notice that she would like to drop one of her evening shifts on reception. She started working at the practice twenty years ago.  Can I refuse the request as it will be very difficult to cover the shift, or at least request more than 4 week’s notice?

It is important to explain that the employee will need to put her request in writing, using the set procedure listed above.  It will then be a matter for you to consider the request based on the Practice business needs, and agree a date suitable to implement the changes, based on the reasons the employee gives, in relation to the 4-week timescale in her request, if you are able to accommodate.

In addition to the above FPM members can obtain further information via the FPM website. Alternatively members can also email specific questions about employment issues to where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.


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