How do we deal with multiple flexible working requests which are received within the same two-week period?

Posted in : Seamus Says - Employment Law Discussion on 11 September 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Flexible Working

Scott: "How do we deal with multiple flexible working requests which are received within the same two-week period? Can we prioritise those employees with disabilities and childcare issues, or perhaps people who are terrified of coming into work?"

Seamus: Yeah, so I think what we expected to see in the poll there, there has been an uptick in relation to applications for flexible work. And there's no doubt that, you know, care facilities are closed at the minute, or there's a reduction in services, schools reopening. You know, childcare facilities not being back up and running to full speed again. Can absolutely understand why there have been applications for flexible working. And, you know, these increases have resulted in employers scratching their head.

The general view would have always been, you know, you deal with those applications on a first-come, first-serve basis. But I think the reality is that employers will have received a number of applications in close proximity. And then what way does the employer deal with those? Because remember that the employer is looking at the facilitation of these through the needs of the business. And the needs of the business are sort of paramount keystone whenever you're looking at these issues.

But for me I think the sensible way for an employer to deal, when they've received multiple applications within the workplace and they know they're not going to be able to facilitate everything, is possibly looking at the applications in the rind and looking at the more high-risk applications and maybe dealing with those on a priority basis. So maybe people with, you know, disabilities, childcare issues, or caring issues, you know, that they're facilitated and they're looking at those initially and dealing with those, and then come back to look at the other applications if they can.

It is a difficult situation for employers. I appreciate that. And I also think that in the majority of places, and I'm glad to see the poll is reflective of that, is that there is a bit of a pause on flexible working because we are all working flexibly. Or alternatively looking at the basis, because, you know, probably the majority of the listeners will be aware that the application for flexible working is a permanent change to the contract. It's not on a temporary basis. It is seen as a permanent position. But at the minute, you know, we're trying to facilitate and we are looking at things on a temporary basis. And I think employees also appreciate that and may not want ultimately for their application to be on a permanent basis. So sort of temporary variations and looking at things that way to try and accommodate where we are.

Scott: Okay. And I suppose one of the key points is that almost anyone now, if you have 26 weeks service, I think it is, can apply for flexible working and put the business case there. If it's refused for people who have caring responsibilities or disabilities and such, like it's those people that can take a claim, not the single individuals who don't have disabilities and so on.

Seamus: Yeah.

Scott: They can take a claim. So the one that's less risky for an employer is to try and prioritise, and I get that. But it's also worth explaining to all the people that are putting the requests in and having a discussion about, you know, "Under these rules, it's supposed to be permanent, unless we agree something different. But we've had so many, we have to try and prioritise." And manage expectations. It's more an HR issue when it comes down to that kind of granular level, I suppose.

Seamus: Yeah, 100%. And just to bring it back, obviously, you know, three requirements to be able to bring an application for flexible working is that you have to be working under a contract of employment, you have 26 weeks continuous service, and that you haven't made another application for flexible working within the last 12 months. And that one is interesting for me, because if applications have been made and rejected, it maybe has been over the six months that they've actually been working on flexible working that they've had, or that they requested and was rejected. But, you know, we're in circumstances now where essentially that has been facilitated. You don't want to get into a situation either where that's viewed as a permanent position by the employee. So I think important to keep these things in writing and keep the updates, you know, to keep the flow, whether it's an email correspondence, just to keep the employer right.

The other things, you know, obviously that the employer can look at, when assessing things, is the costs of the application for flexible working on the business, the impact on the quality or the performance of work duties, or the strain on the existing members of the working team and things like that.

So we are in a precarious, unusual situation. It's unique for the position that we're in. But, again, I think employers do need to tread carefully in and around this area.


This article is correct at 11/09/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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