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| Industry News |
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Flexible working
July 2008
How do we revoke it?
You originally agreed that an employee could work on a more flexible basis. Unfortunately, for business reasons, this isn’t working and you now need to cancel the agreement. Can you do so?
It’s not working
Several months ago our subscriber agreed to allow an employee to work from home one day a week. This arrangement worked nicely for a few weeks, but restructuring means that she’s now needed in the office full-time. They’re now in an awkward position as it means revoking the agreement.
The law says. The right of parents with children under six, or disabled children under 18, to request to work flexibly was introduced in April 2003 via an amendment to the Employment Rights Act 1996. However, whilst it sets out the rights of both employers and employees with regard to making and rejecting flexible working requests, no provision is made for what happens should the employer ever need to revoke it. Instead, resolving such a situation becomes a contractual matter. This is because the original agreement to work flexibly will likely to have become a permanent change to the employee’s terms and conditions.
Three-stage approach
This means that our subscriber is going to have to proceed very carefully. In particular, they should review their reasons for needing the employee back in the office full-time instead of four days a week. For example, they should ensure that they have hard evidence available to (1) show what’s changed to require full-time attendance in the office/ / (2) why it affects this particular employee/ / and (3) why there’s no viable alternative, e.g. reallocating duties or taking on a part timer to cover this extra day.
Tip. Good way to approach this is to look at the grounds that can be used to initially reject flexible working requests, e.g. to meet extra customer demand.
Meet with employee
Once our subscriber has formulated a robust case, they must meet the employee. she should be asked for her views and any possible solutions she may have. Ideally, she will then either accept the change or reach a compromise based on a new solution. Fair notice of the change in terms (could be up to twelve weeks) should be given. However, if she refuses to accept the contractual change, our subscriber will have little option but to dismiss her for “some other substantial reason”
Tip. With the increase in flexible working, this scenario may crop up again. If so, be careful to avoid any allegations of discrimination by using this three-stage approach with all employees.
ALLOW YOURSELF SOME FLEXIBILITY
In future, our subscriber should retain the contractual flexibility to revoke a flexible working arrangement in certain circumstances.
Tip. Use the following clause: “In exceptional circumstances, we may need to alter or revoke a flexible working agreement. This will only occur where circumstances outside our control mean that for business reasons, its continuation is no longer feasible. If this happens, we will meet with the employee to explore other options. However, the needs of the business must take priority”
Source: Indicator – Tips & Advice for Personnel Issue 12 - June 12 2008
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