How you can best support members’ flexible working requests as a steward
Work through the ‘Your rights and best practiced’ and ‘how to apply’ sections of this resource with and member applying for flexible working arrangements.
Key considerations for reps supporting members:
1. Be aware that employers can consider a request withdrawn if the member has told the employer (verbally or in writing), but also if:
- the member has not attended a meeting (or subsequent rearranged meeting) to discus the request, including any appeal
- the member has unreasonably failed to provide information that the employer needs to decide whether to agree the request.
2. Check your local policy to see what the rights, timescales, and grounds for appeals. If it is not clear the best approach is to use the grounds for an employment tribunal claim.
if challenging the employer on the basis of incorrect facts you should ask them on what factual basis they have made their decision.
You can consider using your grievance procedure if you are unhappy with the outcome of the appeal.
Ultimately the member may have an employment tribunal claim but would first need to enter into early conciliation with ACAS, or the Labour Relations Agency (NI). It cannot be just because you disagree with the business reasons the employer gave.
There may also be a number of discrimination claims that can be raised to challenge the employer's refusal. E.g:
- If a woman has requested flexible work for childcare reasons and this has been refused, she may have a claim for indirect sex discrimination.
- A man who is refused flexible work may have a claim for direct sex discrimination if a woman in similar circumstances was granted flexible work.
- A member with a disability may have a claim for disability discrimination if reasonable adjustments are refused.
It is very important before reaching this stage that you discuss options with your CSP Senior Negotiating Officer (SNO) as early as possible. There are strict time limits which apply to the tribunal process.
3. The majority of cases that stewards are involved in are about members returning from maternity leave.
If the employer still hasn’t made a decision when a member is due to return from maternity leave, you should:
- contact your employer pointing out that the situation is now urgent; asking them for a decision within seven days; and giving details of previous communications and attempts to contact them.
- You could also consider submitting a grievance if they have not followed correct procedure.
The employer and member will need to agree a further period of leave. This should be agreed in writing and could include any of the following: parental leave; annual leave; paid or unpaid leave.
If the employee is unable to return to work on the same hours as before their maternity leave, their employer could allow the employee to return to work on the basis requested for a trial period.
If the employee decides to return to work on the same hours as before their maternity leave, this may limit their ability to claim indirect sex discrimination if their request is subsequently refused as it indicates that they are not disadvantaged by having to work their old hours.
If the member decides to return to work on their old hours, they should consider writing to their employer stating that they are only able to continue working on their old hours temporarily while a decision is made.
Negotiating and improving your local policy and processes
Use this checklist to you make sure your employer’s flexible working policy and practices are as supportive as possible.
- Do you work in an employee friendly workplace? If working in the English NHS – you can check your employer’s Staff Survey results regarding opportunit[ies] for flexible working. If survey results poor, ask your health and safety reps, committee or staffside to pursue this issue with senior management.
- Could your local policy be improved? Are the principles of offering flexible working enshrined in the organisation’s business plans and HR strategies? If you work in the NHS, has your policy been agreed with the trade union staffside and meet the expectations of Section 33? If not, ask to review it via your joint negotiating forum, and:
- write in a strong commitment to flexible working at all levels in the organisation recognising the benefits for staff, managers and patients. Is the statement at least as positive as Sections 33.2 and 15.38–15.39 of the NHS terms and conditions handbook? Is there a clear commitment that the employer will consider requests positively?
- negotiate as a supportive a local policy as possible, with tighter timescales. Good policies should also include flexibility to extend any of the time limits by mutual agreement as this may allow time to get further information or consult with colleagues on how the new working arrangement could be implemented successfully.
- ensure the policy sets out the range of flexible working arrangements that will be considered, with an explanation of each one
- provide clear information about how employees should make an application –who the application is sent to and details of what information should be included in it. A template for staff to complete could avoid requests having to be returned by managers asking for missing information?
- Check the policy allows for trial periods if the manager has concerns. Make sure a clear procedure for reviewing the trial period is included.
- Write in a right for the employee to be accompanied at any meetings (eg by a trade union representative).
- Make sure that there is a right to escalation and appeal, and to representation at any hearing.
- Check if there a clear statement that staff who work, or request to work, under flexible working arrangements, will not suffer victimisation or unfair treatment because of this.
- Communicating the policy: Are there plans in place for regular communications with staff promoting flexible working? This could include successful case studies across a range of staff groups and grades. Think about using as many different channels as possible including staff newsletters, staff/CSP member meetings, wages slips and noticeboards.
- Monitoring and reviewing the impact:
- Has the employer carried out an equality impact assessment of any new or revised policy?
- Is there a commitment to monitor take up and refusal of requests to ensure the policy is being applied fairly to all staff?
- Applications and outcomes should be recorded and kept for a minimum of one year. Monitoring information should be made publicly published and discussed at your joint negotiating forum. See para 33.19 to 33.22 of the NHS Terms and Conditions Handbook.
