Flexible working requests – how to avoid discrimination claims


Flexible working requests – how to avoid discrimination claimsEmployers granting one flexible working request but not another or prioritising requests need to beware of discrimination claims. Find out how to avoid the pitfalls

All employees with more than 26 weeks' service can now request flexible working. Employers need to know whether and how to prioritise competing requests without risking discrimination claims from disgruntled employees.

If you haven't already done so, the first priority is to introduce a flexible working policy. This should make it clear how requests will be handled and which business needs justify a refusal. It should clarify that requests will be considered on a case-by-case basis and that the fact that one request is granted doesn't mean another will be. It should provide for the employee and their manager to discuss whether flexible working is consistent with the needs of the business when a request is made.

Acas guidance

There is an Acas Code of Practice and supplementary 18-page guidance that can help you decide what to incorporate in your flexible working policy, including allowing employees to request temporary or trial working arrangements (while they are taking a course or because of a family bereavement, for example). You can find the Code of Practice and Guide on the Acas website.

However, there are aspects of the Code and Guide that may not be appropriate for your business. For example, some employers are unhappy with the Acas suggestion that requests are dealt with on a 'first come, first served' basis. They point out the risk of granting one request and then having to refuse a similar second request because they granted the first. They prefer a policy that says they will look at the whole situation and decide what is fair. If in doubt, take specialist professional advice.

Generally, it is legitimate to consider the likelihood of a discrimination claim when deciding whether to grant or refuse a request. If an employee could argue that your refusal to grant their request was directly or indirectly related to a protected characteristic such as their age, sex, religion or race, you risk a discrimination claim. Make sure you can justify it and that you keep a comprehensive record of your investigations and reasoning leading up to the decision.

Types of flexible working

If an employee with a disability makes a request to work flexibly, you may also have a duty to make "reasonable adjustments". The law says that employers must make reasonable adjustments for an employee with a disability where a provision, criterion or practice (PCP) at work puts them at a substantial disadvantage compared to employees without a disability. Whether an adjustment is "reasonable" depends on circumstances. Adjustments may include different working hours or allowing an employee to work at home.

You could consider alternatives to flexible working and different types of flexible working, which might meet the needs of both you and your employee before refusing a request. For example, a job share may be more appropriate than flexible working.

If a flexible working request is granted, consider limiting it to a specified period only, perhaps with a review at a specified future point. It should be made clear to the employee that you can revoke the arrangement if the needs of the business change, provided you give reasonable notice.