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Practice dilemma: Flexible working arrangements

You are not obliged to agree, but there are detailed rules about the process you must follow. You may also need to justify any refusal, so care must be taken in your decision. 

Any employee with at least 26 weeks' service has a legal right to make one flexible working request each year. The request can be for a change to: hours of work; times when they may be required to work, or location. These procedural rules only apply: to those making the request in order to care for a child under 17 (18 for a child with a disability); and where the request is in writing. 

The written request should include the employee's view of how their request can be accommodated by you and what impact they anticipate it will have upon the practice.  Many employers will deal with all requests, no matter how informal or what the reason.

The timescales for considering requests are stringent.  A meeting must be arranged within 28 days of the request, with a decision within 14 days thereafter.  The employee also has a right to appeal. The appeal hearing must be within 14 days with a decision within 14 days thereafter.  You can agree with an employee to extend these times but they are likely to want a rapid decision, particularly if their existing childcare arrangements have broken down.

If you are rejecting the request, your reason must be one of those prescribed.  Do check the list of potential reasons, but helpfully they are fairly broad and include: the burden of additional cost; the detrimental effect the change will have on your ability to meet patient demand; an inability to reorganise your work amongst your existing staff to accommodate the request; and an inability to recruit additional staff. 

Your reasons will be carefully considered if you were to face a claim and you should ensure they stand up to scrutiny.  For example if a particular working arrangement works for another member of your practice staff it may make it more difficult to refuse the request, unless that leaves the practice lacking key staff or overstretched  at a particular time.

The toughest legal risk you face if any request is rejected, is that your employee may bring a claim for indirect sex discrimination. Tribunals accept that more women than men have primary childcare responsibilities and therefore a requirement for a particular working pattern whichinhibits childcare will adversely impact upon more women than men.  As a result, you may need to demonstrate to a Tribunal that you were justified in saying no to any request. Technically the test is whether your decision represents a proportionate means of achieving a legitimate aim. It can often be hard to strike a balance between the employee's needs and those of your practice, which is why it is important to carefully consider your reasons.

You must not refuse as a knee-jerk reaction and must carefully consider why you cannot agree the request. You should explore possibilities, for example by asking other practice staff if they would be willing to work different hours if that meant the request could be accommodated. In recent years we have seen a significant increase in employees expecting employers to agree to their precise requests without themselves being more flexible. 

If you cannot meet the particular hours or times requested, do consider what other arrangements you could put in place and offer them to the employee.  Technically this is still a refusal of their request, but you will be in a stronger position in arguing you were justified in doing so. 

If you have good reasons, such as the need for the practice to have certain roles working when the practice is open and their requested hours not fitting that need, do explain them and do confirm them in writing. 

There is always a risk with a flexible working request that the staff member may leave if they cannot fit their childcare arrangements with their working hours.  Saying no may lead to the loss of a good member of staff.  It may also lead to a claim.  The key to being able to defend such a claim is to ensure that you have followed the strict procedural requirements, whilst also having carefully thought through your reasons for turning down the request.     

Phil Allen is a GP partner in the employment team at national law firm Weightmans LLP


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