Can we insist on 26 weeks’ continuous service in a new role before a flexible work request can be made?Posted in : Seamus Says - Employment Law Discussion on 11 January 2019
Q: If an employee has more than 26 weeks continuous service, but recently applied for a new full-time post in the organisation, can we state they need to have at least 26 weeks continuous service in their new posts before they can make another flexible working request?
Scott: The next question we're going to look at kind of ties in there again. It's on flexible working. It came in between the last session that we had and over Christmas. "If an employee has more than 26 weeks continuous service, but recently applied for a new full-time post in the organisation, can we state they need to have at least 26 weeks continuous service in their new posts before they can make another flexible working request?
Seamus: There's a very straightforward answer to that question and it is that under the legislation, the position is that once you have the 26 weeks continuous employment within the organisation, that you're entitled to make your application for flexible working. You cannot departmentalize and say if you're moving into a new department within the organisation, the clock starts to tick again for your 26 weeks. Where there's a period of continuous employment, you must have the 26 weeks. Once you have that under your belt, you have an entitlement.
Scott: You can make a request. Now, there is a barrier to making a second request if you've been rejected. So, you're barred for 12 months.
Scott: But in this situation here, if you have somebody who makes a request, they perhaps get flexible working and they move to a different role, there would be nothing, really, to stop them saying, "Hey, can I have flexibility in that other role?"
Seamus: Yes. I think the key aspect for that, what I've taken from this question and what the issue behind it might be is that if you have somebody working, they've made a flexible working application, again the law and the procedure is pretty clear—you can only make one statutory request in any 12-month period. Also, the application of flexible working, it is permanency. So, it's not a situation where you can apply for flexible working and six months later decide to change your mind. There is permanency with it now.
The smarter way that a lot of employers deal with flexible working is to say, "Well, if it's looking like a possibility, let's do a trial run. Let's do a test. Let's pilot this out for 12 weeks and see how we get on." Then we'll know better at the end of that period whether we can confirm the flexible working arrangements as permanent. So, there's an ability to do that okay.
Really, what might happen in these circumstances is that we have somebody in that has been working at least for the 26 weeks, for the six months in the role, and they're in a position whereby there's a new role coming up. If they're already on a flexible working arrangement, the opportune time to discuss that, really, is at the interview stage or whenever the job offer has been made to say, "Well, look, if you're on a flexible working arrangement at the minute, this new role that you're looking to move to, here's what we can and can't do or what we can and can't facilitate."
Then that works vice versa as well. It may be that the employee is a very good employee, has put an application in for flexible working, but the role just doesn't allow it. That's okay too. The legislation says that specifically in Northern Ireland, there has to be that business case in terms of saying how it's all going to work or not. Sometimes it just doesn't work. I think that's few and far between.
We're also of the view now—I do remember I had a tribunal case a couple of years ago, whereby the employment judge said that it was very few jobs, few and far between now that couldn't work on a flexible basis and it would be hard to think of one that wasn't. Now we were fighting the case under the circumstances. We thought we had a very good case. It turned out . . .
Scott: That you didn't.
Seamus: The judge didn't agree with us. I wouldn't say that we didn't have a good case, but the judge didn't agree with us. Those words always stuck with me, specifically in and around applications for flexible work at our job shares or anything like that. I think certainly the climate now is that these applications should be accommodated, certainly where they can be.
Scott: There's only a right to request. There's not a right to get it.
Scott: But the bottom line is there is a benefit to both the employer and the employee in flexible working because if you can accommodate the work-life balance, which is what flexibility is about, of the employee, they're more likely to stay. So, flexibility is a retention tool. It also makes people happier and more willing to go into work and do the job. So, it's about engagement.
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