Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The previous conditions of having to demonstrate caring responsibilities will no longer apply meaning that the extent and breadth of reasons for requests from your workforce can be predicted to increase. The existing 8 grounds for refusing a request will continue to apply.
ACAS has produced a draft Code of Practice and non-statutory guidance on the extended right to request flexible working. The guidance recommends employers document how to prioritise competing requests in a flexible working policy. However, employers need to think carefully before doing this because a “one size fits all” approach might unnecessarily restrict their decision making in the future.
In our view, the key issue in dealing with more requests will be managing competing interests, particularly where the refusal of a request carries with it the risk of a discrimination claim. How do employers, therefore, prioritise requests where one of these is received from someone who has a protected characteristic under the Equality Act? In our view it will be important not to apply a blanket policy that, for example, grants all requests where they are made by employees on maternity leave or that give priority to those with a protected characteristic. We emphasise that the approach needs to be one of balance considering each case on its own merits but taking into account any disadvantage someone may suffer as a result of their protected characteristic if a request is not granted. Your flexible working policy should make it clear that granting flexible working for one employee should not be seen as setting a precedent for another employee to work flexibly.
We also consider that giving blanket acceptance to requests you feel can be accommodated should be avoided. We consider it is better to attach conditions. For example, having a 6 month trial period or making it clear that the request is subject to continuing to deliver particular business objectives and reserving the right to change the arrangements if those objectives are not achieved.
Further, how far could refusing to grant a flexible working request become a failure to make reasonable adjustment for a disabled person? In a recent case, the Court of Appeal confirmed that the duty to make reasonable adjustments only applies to disabled employees and any not to an employee who is associated with a disabled person. This will be helpful for employers in considering requests from those who wish to work flexibly to care for a disabled family member, for example, but will not reduce the duty on employers to carefully consider a request as a possible reasonable adjustment where the employee themselves is a disabled person.
The key steps employers should consider to prepare themselves for dealing with requests are:
- Prepare appropriate guidance and training to managers on the obligation to consider requests reasonably;
- Decide what procedure will be followed in the event of a flexible working application being received. If there is not already one in place, employers should consider introducing a policy for handling flexible working requests. This aids with consistency and transparency;
- Consider amending existing flexible working policies to reflect the extended right to request flexible working; and
- When granting requests, attach conditions such as a trial period or make it subject to delivering particular business objectives.
For more information
For further information on the impact of the legislation on your organisation, or for further assistance in relation to flexible working requests, please contact Kate Watkins on 0121 212 7494 or email firstname.lastname@example.org.
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