Ask the Expert: refusing flexible working requests not as simple as saying ‘no’

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Flexible working arrangements are increasing and employers are expected to handle flexible working requests in accordance with the law.

OPINION Q: One of my full time staff members has asked for more flexible work arrangements. I’m worried this will have an impact on our productivity and output as we’re only a very small team. Could there be any legal ramifications if I refuse him?

Requests for flexible working hours are on the rise and can be a challenge for employers, no matter how big or small.

The Employment Relations Act sets out the process for dealing with a flexible working hours request as well as the recognised business grounds that an employer can rely on to decline a request.

In your situation, there would only be legal ramifications if you either failed to consider the request in good faith, or if you declined the request based on grounds not provided for in the Act.

Under the Act, an employee can make a request for flexible working hours at any time and for any reason.

A request has to be in writing and it must contain the specifics of the change in working hours being sought.

The employer then has one month to notify the employee whether or not the request has been approved.

To avoid any negative legal consequences, there is an obligation on the employer to consider the request in “good faith”.

This means being “active, constructive and responsive” in regard to the request, and not doing anything which could mislead or deceive the employee.

An employer can refuse a request on one or more recognised business grounds. In your situation, these could include:

– Inability to reorganise work among existing staff

– Inability to recruit additional staff

– Detrimental impact on quality or performance

– Burden of additional costs

– Detrimental effect on ability to meet customer demand

In addition, a request can, and should be refused, if it is inconsistent with the terms of any relevant collective employment agreement.

If a flexible working request is refused, the employer’s notification to the employee must explain the ground/s relied upon and the specific reasons.

An employee can only challenge a declined decision if they believe the employer has not complied with the notification process.

Strictly speaking, an employee cannot challenge the employer on its stated grounds for declining the request.

So, first of all if your employee has only verbally requested that they would like flexible working hours, you should ask him or her to put their request in writing.

Then consider the request and its specifics. If you need more information, discuss this with the employee.

If the request would have an undue impact on productivity/output, which you mention, you would have a good case to decline the request based on one or more of the recognised business grounds.

Provided you notify your employee within a month of receiving the request, including the grounds and reasons, the employee would be unable to challenge this.

However, there is no limit to the number of requests an employee can make for flexible working hours, so your employee, at a future date, could make a fresh request.

Of course you still remain bound by your good faith obligations, so before refusing any request, if you believe there is an alternative variation which could be accommodated, you could put this to your employee for their consideration.

Alternatively, you could also give consideration to agreeing to the request for a short or defined period of time to determine whether or not the request can be accommodated by the business in the longer term.

Mark Lawlor and Catherine Coup are employment law specialists at law firm Duncan Cotterill.

– Stuff

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