Legal issues to watch out for when dealing with flexible working requests

When dealing with any flexible working requests, it’s important that you stick to the rules and don’t make any mistakes which could open you up to potential legal claims. If you have a properly written flexible working policy in place and ensure that you follow the procedure, you should be able to steer clear of the various pitfalls.

Discrimination

It’s vital that you don’t unlawfully discriminate against any employees in dealing with their requests for flexible working. In particular, this means that you cannot take the following factors into account when making a decision:

• disability
• age
• sex
• sexual orientation
• race
• religion or belief
• gender reassignment
• pregnancy or maternity
• marriage or civil partnership

So, for example, even if it may seem pragmatic, you should not offer flexible working only to parents (or vice-versa). You should also make sure that each request is dealt with using a set procedure to avoid potential claims of discrimination.

Changing a contract

If you decide to grant a request for flexible working, you need to agree the changes with the employee and have them sign and date any amendments or the new employment contract. Making unilateral changes to the terms and conditions of an employment contract can open you up to breach of contract claims.

Minimum wage

If the type of flexible working involves a zero hour or casual work contract you cannot require your employees to be on “standby” or “on call” without counting this time towards their hours of work. If you fail to include this time in their pay, you could be flouting minimum wage regulations.

Working time regulations

Unless they have opted out, none of your members of staff should work in excess of 48 hours per week (averaged over 17 weeks). There are certain exceptions to this rule (eg. police and emergency services) but in general you need to ensure that any flexible working changes don’t end up increasing the hours of your workers beyond this 48-hour limit.

Dismissal

It’s absolutely forbidden to dismiss or otherwise place any of your employees at a disadvantage in connection with their flexible working request. If you need to terminate the employment contract of an employee around the time they make a flexible working request, make sure you have evidence to demonstrate the decision was not connected to their request.

We have a range of documents and letters which are helpful for employers who are dealing with flexible working requests. These can be downloaded from our Employment Documents Folder. Click on the relevant links below for further information.