Flexible working requests in GP practices: Practical employer guidance
We were recently asked by a GP practice how to respond to a flexible working request from a receptionist who wished to start work later in order to take her child to school.
The practice was sympathetic to the request and valued the employee’s contribution. However, understandably there were operational concerns: 8am was the busiest time for incoming calls, and there was understandable anxiety about setting a precedent for other staff.
So, in this instance and ones alike, how do you deal with this? Below, we outline the key legal considerations and practical steps employers should take when handling requests of this nature.
Can the Employee Make a Flexible Working Request?
The bottom line is, if an employee has at least 26 weeks’ continuous employment, they have a statutory right to make a flexible working request.
In order to go about this in the correct manner, the request must be made under the statutory scheme and submitted in writing, this is in accordance with the prescribed requirements.
It is worth noting that while flexible working requests are often associated with permanent contractual changes, the employee may ask for a temporary change, provided this is clearly stated in the application.
It is important to note that an employee may make only one statutory flexible working request in any 12-month period. If a request is approved, no further statutory request can be made during that time, although informal discussions remain possible.
What Must the Written Application Include?
The aforementioned valid statutory request must include a number of statements, these must detail:
● The date of the application
● The change to working conditions being sought and the proposed start date
● The anticipated impact on the employer and how that impact might be addressed
● Confirmation that the request is made under the statutory scheme
● Details of any previous flexible working request and its date
Requirements for the Employer
Once the request is received, the employer has a three-month decision period to consider it, discuss it with the employee and confirm the outcome.
The law requires employers to deal with requests in a “reasonable manner”, although this is not thoroughly defined. When following ACAS guidance, the suggestion is that employers should meet with the employee as soon as reasonably possible, unless the request is to be approved outright.
Tribunals have criticised employers who focus solely on why a request cannot work, rather than exploring whether it could be accommodated. Discussions should therefore begin from a constructive and open standpoint, with a genuine attempt to address any practical challenges.
There is no statutory right for the employee to be accompanied at meetings, but ACAS recommends allowing a work colleague to attend and notifying the employee of this in advance.
Does Agreeing to the Request Set a Precedent?
Employers are right to be mindful of consistency. However, agreeing to one request does not automatically mean all future requests must be accepted.
Different outcomes may be justified where circumstances differ, or where the organisation’s capacity for flexible working has been reached. A common and pragmatic solution is to agree to a trial period, allowing both parties to assess whether the arrangement works in practice.
Should the Request Be Accepted or Refused?
There is no definitive answer to whether a request should be accepted or refused, as ultimately every request is different.
In reaching a decision, employers should balance:
● The benefits of the change for the employee
● The value of retaining an experienced and capable member of staff
● Any adverse impact on service delivery, costs or operational efficiency
The decision should be confirmed in writing as soon as possible.
If the request is accepted, the agreed working pattern will usually amount to a contractual variation, unless expressly limited by a trial period or time-bound agreement.
Lawful Grounds for Refusing a Flexible Working Request
Should an employer need to refuse a flexible working request, a statutory request may only be refused for one or more of the following reasons:
● The burden of additional costs
● A detrimental effect on the ability to meet customer demand
● Inability to reorganise work among existing staff
● Inability to recruit additional staff
● Detrimental impact on quality or performance
● Insufficient work during the proposed working hours
● Planned structural changes
This is a subjective test, meaning the employer’s view will generally stand unless it is based on incorrect facts; in this particular scenario, the employer may reasonably conclude that a later start time would affect the practice’s ability to manage peak call volumes.
That said, it would be sensible to explore whether rota adjustments or hour-swapping with colleagues could resolve the issue, plus while not strictly required, providing a clear explanation for any refusal is best practice.
ACAS guidance also suggests offering a right of appeal, which often forms part of dealing with a request reasonably and transparently.
Discrimination Risks to Be Aware Of
Where a request relates to childcare responsibilities, employers should be alert to the risk of indirect sex discrimination.
Even where a request is refused, an employer may be able to justify the decision objectively, for example, by demonstrating that certain working hours are critical to service delivery.
Unlike the statutory flexible working regime, discrimination claims place significant weight on the employer’s underlying reasoning and evidence.
Importantly, employees with less than 26 weeks’ service may still raise informal requests and could still pursue a discrimination claim if a refusal is handled poorly; for that reason, it is often sensible to apply a similar, structured approach to all requests, regardless of eligibility.
Getting the Right Advice
Flexible working requests require careful handling, particularly in environments such as GP practices where service continuity simply isn’t optional, it is a necessity.
If you find yourself in a similar scenario and would like tailored advice on managing flexible working requests or wider employment issues, Orwins can provide the legal help you need, simply contact our Employment team for confidential support.
