Am I entitled to ask for flexible working arrangements?
Yes, provided you have worked continuously for the university for at least 26 weeks and have not made a similar flexible working request in the previous 12 months.
If you do not meet these criteria, the university still has discretion to consider your request.
Bear in mind that it can lead to a permanent contractual change. Sometimes a short-term informal arrangement can be more flexible.
You can access the flexible working application form here: Flexible Working Application Form
And review the University’s guidance notes here: Guidance on Flexible working
Can a flexible working request include a request to work from home?
Remember that your rights to request flexible working are held in addition to other rights e.g. the right to unpaid time off for dependants in an emergency.
Can the university refuse my request?
Yes, provided they can give you an objective good business reason for doing so. Under law, there are 8 ‘good business reasons’ for refusing a request:
- Agreeing to the request would impose a financial burden on the employer.
- Agreeing to the request would require the employer to redistribute the work among the staff body, and this is not possible.
- Agreeing to the request would require the employer to hire additional staff, and this is not possible.
- Agreeing to the request would have a detrimental effect on quality.
- Agreeing to the request would have a detrimental effect on performance.
- Agreeing to the request would have a detrimental effect on the employer’s ability to meet customer demand; for example, demands related to face-to-face engagement.
- Agreeing to the request would be impossible because there would not be enough work available for the employee making that request i.e. the job cannot really be done at alternative hours, or from home.
- The employer is making planned structural changes to the business e.g. going through a redundancy process.
As you can see, many of these reasons are quite broad: employers enjoy significant discretion under law. However, they must give the request meaningful consideration, and address it with an open mind (Mehaffy v. Dunnes; Girvin v. Next Retail). They must be able to evidence their reasoning (Commotion Ltd. v. Rutty). For example, it is not enough to assert that granting your request would have a detrimental effect on performance: the university must be able to explain why this is the case.
Isn’t the fact that I have been working from home for months in itself evidence that there is no good business reason to refuse my request?
No, but the university should be able to explain which of the 8 ‘good business reasons’ set out in the law apply now but did not apply during lockdown. For example, the university may not accept that a teaching academic can do certain term-time parts of their job effectively from home.
Can I appeal a refusal?
Yes. The university has an established appeals process. Details are available on the staff intranet.
If your appeal is unsuccessful, you may raise a grievance although we would recommend you seek casework support to make sure you have a strong case as HR have taken the position in the past that they will not hear a grievance against a decision on flexible working.
My colleague and I have very similar personal circumstances, and made similar flexible working requests. Theirs was granted and mine was not. Is this a ground for appeal?
In principle, if there was no ‘good business reason’ to refuse a similarly-situated colleague’s prior request, then there is no ‘good business reason’ to refuse yours.
It is important that the university can demonstrate a consistent approach from line-manager to line-manager, and from department to department. The appeals process is one route to attempting to ensure consistency.
However, it may be that granting other colleagues’ requests has generated pressures on ‘quality’, ‘performance’, or the ability to meet ‘customer demand’ which then constitute ‘good business reasons’ to refuse additional requests, particularly where requests are very numerous. If this is the case, you should receive an explanation to that effect.
The law does not prescribe what employers should do if they receive two or more ‘competing’ flexible working requests at the same time.
Changes to my personal circumstances because of COVID-19 mean that I have additional caring responsibilities, which are difficult to balance with my normal workload (e.g. I cannot find childcare compatible with my working hours). Does equality law give me any additional rights to flexible working? Can I raise this in my appeal?
Possibly. The decision to refuse your flexible working request may be discriminatory if you or the person you are caring for has a protected characteristic under law. Protected characteristics include sex, age and disability. The decision to refuse your flexible working request may be discriminatory even if similar requests by other colleagues have also been refused. To give a very simple example, a requirement that all teaching staff be available to teach on campus during primary school hours could amount to indirect discrimination against women on the basis of sex. Since women are more likely than men to be primary carers of school-age children, such a policy would disadvantage women by comparison with men (see e.g. Seville v. Flybe). The disadvantage may be financial (Smith v. Gleacher Shacklock), but need not be.
In addition to demonstrating that it has one of 8 good business reasons for refusing your request, the university must show that refusal of your flexible working request is a proportionate means of protecting the business interest represented by that reason. It must show that one of those 8 recognised interests objectively outweighs the discriminatory effects of its decision to refuse your flexible working request (XC Trains v. Aslef).
The ACAS code of practice encourages employers to work with employees to come up with alternative working patterns that suit both parties. If the university cannot grant your original request, it may be able to suggest a workable alternative. It should work with you to find the least discriminatory compromise possible (Glass v. Newsquest).
In principle, a grossly discriminatory refusal to agree to a flexible working request may also constitute constructive dismissal, if you cannot continue to do the job without adjustments to your working patterns. However, you will usually be better off making an equalities claim (if applicable) as you can make a claim of this kind while still in employment.
Can I enter into a flexible working arrangement on a “trial period”?
Yes. This is especially worth considering given that a flexible working request, if accepted, would form a permanent change to contract. Alternatively it is possible to request temporary arrangements be put in place, for example, for a single teaching term. These would normally have to be negotiated with your line manager.
Can I take time off to care for a dependent or family member?
Yes, although this is separate and in addition to your right to make a flexible working request. The University does currently allow for emergency dependents leave of up to five days at a time, and usually allows for this to be paid leave although this needs to be negotiated with your budget holder: Guidance on dependants leave
As an employee you are legally entitled to time-off to deal with an emergency involving a dependant if they are a spouse, partner, child, grandchild, parent or someone who depends on you for care.