Flexible working likely to increase

The Covid 19 pandemic has meant that many employers have had to rapidly adapt to new ways of working, including increased home working and undoubtedly a degree of flexibility has been required, as staff try to balance the competing demands of home life, including childcare responsibilities, and working life.  The statutory right to request flexible working has existed in Northern Ireland for some time, however, it may be reasonable to anticipate that, as restrictions ease, and we emerge from lockdown, flexible working will become more prevalent and we may see a shift away from the traditional 9-5 model and what was previously considered “normal” working cultures and practices.  This may lead to an increase in the number of flexible working applications being made and it is therefore important that employers are aware of how to deal appropriately with such requests.

There is a statutory right to make a flexible working request under the Employment Rights (NI) Order 1996 for any employee who has been continuously employed by their employer for a period of 26 weeks or more at the date the application is made.  Employees can only make one statutory request in a 12 month period.  Applications will usually relate to a proposed change in the hours the employee is required to work, the times when the employee is required to work or the employee’s place of work.  If granted, both employers and employees should be mindful of the fact that this change will constitute a permanent variation to the employee’s contract of employment.

An employee’s application for flexible working should:

• State that it is such an application;

• Specify the change applied for and the date on which it is proposed the change should become effective;

• Explain what effect, if any, the employee thinks making the change applied for would have on the employer and how, in the employee’s opinion, that effect may be dealt with.

The employer must hold a meeting to consider the employee’s proposal within 28 days of receipt of a valid application.  The employee has the right to be accompanied at the meeting by a work colleague, which may include a workplace union representative. The employer’s decision must be communicated in writing within 14 days of the meeting, and the employee offered a right of appeal.

Employers have a legal duty to consider such requests, but not necessarily to grant same.  That being said, they can only refuse a flexible working request on a number of specific business grounds and the written outcome must specify the business ground or grounds relied upon and why they apply.  The grounds are: burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff, inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; a lack of work during the periods the employee proposes; and planned structural changes.

Any appeal must be lodged within 14 days of confirmation of the employer’s decision, and the appeal meeting arranged within 14 days of receiving the appeal notice. Again, the employee has the right to be accompanied. The appeal outcome must be confirmed within 14 days of the appeal meeting and should again state the grounds for the decision.  

If the application is rejected, the employee can make a claim to an Industrial Tribunal on the basis that the employer failed to adhere to the statutory procedure or that the employer’s decision was based on incorrect facts.

In the event the employee’s claim is successful the Tribunal will make a declaration to that effect and may order that the employer reconsider the application, adhering to proper procedure, and order compensation to be paid to the employee.

As these types of application may increase in the future, it is important that employers know how to recognise them and that they have the relevant policies and procedures in place so that both employer and employee are clear as to how the application should be made and dealt with. Katie is a solicitor specialising in Employment Law at Worthingtons Solicitors in Belfast.  Katie routinely provides advice and support to employers on all aspects of employment law, including managing day to day HR issues and the application of internal policies and procedures.  If you would like advice, she can be contacted on [email protected].