Responding to the 'Right to Request' Legislation – Guidance for SMEs

Introduction

Working Families takes the view that flexible working produces tangible business benefits, for employers as well as employees. Our experience with employers of all sizes and sectors leads us to believe that with a positive attitude, all businesses can benefit from incorporating the practices and process required by the "Right to Request" legislation into their systems. The "red tape" involved need not be complex; issues of recruitment, retention, stress, sickness and productivity can be addressed; and for those not already working in this way, the profits of flexible working for all should become apparent.

Organisations having flexible working policies and practices in place manage these in a variety of ways. Some have written policies, guidelines and formally embed flexibility. Others take an informal approach without written policies, but promote a flexible culture where employees know they can request changed working arrangements and each case is taken on its merits.

The Right to Request legislation defines a process through which application for and assessment of requests for flexible working arrangements for the relevant employees (see the Working Families SME factsheet: Flexible Working and the Law) must be undertaken. An employee can make a complaint against an employer if the employer did not deal with the application as required by the Procedure Regulations. So it will stand any business in good stead to introduce a formal procedure which complies with legislative requirements.

Here, then, are some suggestions for policies and guidelines for your business, your managers and your employees, which can be tailored to your specific circumstances but should keep you legislatively compliant.

Application for and Assessment of Requests for Flexible Working Arrangements

You do not need special application forms for requests for flexible working, as the only legal requirement is that employees make their requests in writing. However, many businesses have found it helpful to devise their own forms, or use the one devised by the DTI. (www.dti.gov.uk/er/individual/flexforms.htm)

In either case, the structure of the form should lead the applicant through a series of questions which enable her/him to make the business case for his/her changed working arrangements.

Guidelines and Schedule for assessing Requests

You should be aware the procedure for requesting a flexible schedule has two main features:

• The approach is business-based - you need to ask how the work will get done and what the impact will be on the service. As a Manager you will make decisions about service needs, though an employee's personal circumstances will affect their ability to provide a good service. You will need to know whether the applicant for flexible working is the parent of a young child and any applicant may wish to discuss their reason for requesting a new working arrangement with you, but their reason is not part of your decision-making process.

• The process is collaborative - staff have an opportunity to make their case for working flexibly, and you have the responsibility for considering all the business benefits of the arrangement and ensuring there is no negative impact on the service. Although the final decision rests with you, the decision-making process should be a collaborative one between you and your employees.

Schedule

1.  The available options

It will help if employees know what flexible working options are available in your business and the process for requesting a change in their working arrangements. They should be encouraged before submitting a formal Request, to meet with you for a preliminary (informal) discussion.

2.  The process for making a request

Request can be made in writing by an employee. If you have one, give any employee planning to request a change your Application for Changed Working Arrangements Form. Guidelines for Employees can be found on the DTI website or in the Working Families publication 'The Right to Request'. Ask them to read and consider the guidelines before your preliminary meeting. This will encourage them to think through their plan in the context of meeting departmental and team needs as well as their own personal requirements.

At the preliminary meeting, talk about the value you see in their proposal as well as any concerns you may have about how it might affect the employee's ability to work productively and effectively. Offer positive support with filling out their Application Form. Discuss whether the proposed option is the best one for the individual and the service (e.g. part-time hours versus a flexible hours option). Further guidance on issues you should consider can be found in our publication 'The Right to Request'

Make a note of what was said in the meeting, including the date, and file this.

3.  The meeting to discuss a request

The timing of the procedure laid down in the legislation starts from the date a formal, written proposal is lodged. You must schedule a meeting to discuss the proposition with the applicant within 28 days of that date. (Your employee will be entitled to bring a co-worker to this meeting, who s/he can confer with, but the companion cannot answer questions on behalf of the employee.) Allow yourself adequate time to consider the implications of the request before making a response. Guidance on holding negotiations with employees can be found here.

Having read the proposal, consider carefully the following:

The needs of the job:

• Start by listing the key duties/tasks for the job in question

• Check if the employee's proposed revised hours fit with the duties/tasks you have outlined

• Consider how the duties/tasks might be divided up differently

• Will the impact on clients be beneficial? (i.e. retention of a valued member of staff, even if it means shorter hours?)

Managing the arrangement:

• How will the new arrangement be supervised and performance measured?

• Do you need further guidance to assist you with staff supervision? (See also SME Factsheet 3: Managing Flexible Workers).

• What will be the impact on the other people you employ/manage?

The needs of the employee:

• Will there be changes in their terms and conditions of employment they should be told about?

• How will the new arrangement affect future appraisals or promotion?

• How often will the arrangement be reviewed?

Impact on resources:

• Will the long term benefits of flexible working (such as staff retention and savings on recruitment) outweigh the short term costs of implementing change

If the request is because of pregnancy, sickness, disability or the care of young children, it may be advisable to get an opinion from an HR specialist or Employment Lawyer.

Refusing a request

Sometimes, it may be necessary to turn down or postpone a request, for valid service reasons. Remember, the "Right to Request" legislation only allows refusal of requests on the grounds of:

• the 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
• insufficiency of work during the periods the employee proposes to work planned structural changes

Whatever the reasons, indicate the specific business reasons for doing refusing a request. Give details of any specific changes or targets to meet that would enable you to approve it and/or a time frame within which you would consider a revised request.

Although the legislation states that an employee may not lodge a second request within a year of a first request, it is your right to waive this timescale. Keep a record of the date, reason and circumstances of the refusal on file so that it can be reviewed at a later date. Ask the individual to sign a copy of your notes as an accurate record of your meeting. Whether they will agree to do this or not, file your notes.

Approving a request

If you are happy with the request you can say so at the meeting and discuss how and when the change will be progressed. You might want to agree lines of communication - especially important when working off-site; and a plan for formal evaluation of the changed working arrangement, which can be part of the appraisal process. You should still keep notes of this meeting, again if possible signed by the employee, on your file. Remember: agreed changes to working hours are permanent changes, unless specifically agreed otherwise.

4.  Making a written reponse to the request

Within 14 days of the meeting you must write to the employee to either agree to the new work pattern, or provide clear business grounds as to why the application cannot be accepted and the reason why the ground applies in the circumstances

5.  Appeals

The employee then has a right to appeal within 14 days of your written notification. The appeal, to which the employee may again bring a companion, has to be heard within a further 14 days. The notice of the appeal decision must be given in writing within 14 days of the appeal hearing.

Under the "Right to Request" legislation, a complaint can be on one of three grounds:

• the employer did not deal with the application as required by the Procedure Regulations (or the Remedies Regulations);

• the employer did not refuse the application on one of the grounds set out in the legislation (see above); or

• the decision by the employer to reject the application was based on incorrect facts.

Starting the new arrangement

Once you have agreed the new working arrangement that best suits everyone's needs, you will need to work out details like:

• How work will be monitored and evaluated
• A timetable for reviews, appraisals and staff development
• Length of review period if this has been agreed
• Terms and conditions of contracts, changes to pay, pensions etc
• Plans for keeping in touch and training (for example, will the post holder be required to come in for meetings in non-working time occasionally?)
• Back-up arrangements in case of emergency - ie contacting them at home

Making it work

Make sure you advise other staff members of the change in working hours and have a plan of action for dealing with any problems or issues that may arise from the change.

Hold regular reviews to ensure the scheme is working well for everyone.

Use team meetings or find another way to ensure flexible workers remain informed and involved members of staff. Let them know as new training and job opportunities arise. Encourage the team to devise solutions for any problems that arise.

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