Tribunal case shows how not to handle a flexible working request

A supermarket has had to pay out the maximum compensation for failing to deal with a flexible working request properly. Here, we take a look at what we can learn from this case. In King v Tesco Stores plc a delivery driver wished to change his normal working hours. He had every Wednesday and Sunday off but wanted to have weekends off for childcare. The employee wrote a flexible working request and tried to give this to the store’s People Manager. The People Manager said she had never seen a request before so refused to take it. He then tried to give this to his temporary Team Manager who did not accept it. An assistant manager finally took the written request in December 2016 and wrote to the employee to inform him that he would receive an outcome within three months. The employee chased the request with his Team Manager in January 2017. Although the company’s policy said flexible working requests did not have to be in writing, his Team Manager informed him that he had never seen the request so asked the employee to re-submit it. The three month period ended in March and the request had not been dealt with so the employee started Early Conciliation. The employee further chased the request in April telling the employer that if he did not hear from them, he would assume the request was declined. A meeting took place at the start of May where the employee was told his request was declined because there was no available Wednesday shift. The only option available was to drop the Saturday shift and work overtime. The employee was not given a right of appeal because “he gave no indication that he was unhappy with the outcome”. The employee made a claim for a breach of the Flexible Working Regulations. The employment tribunal upheld the claim as the request was not dealt with in a reasonable manner or a reasonable timeframe, taking 4.5 months to conclude. In addition, the managers had failed to follow the Acas Code of Practice on ‘handling in a reasonable manner requests to work flexibly’ and were not familiar with their own flexible working policy. He was awarded 8 weeks’ pay. What does this mean for employers:

  • It is crucial to be familiar with internal policies and to ensure these are followed at all times. Where a flexible working policy states requests must be in writing, it will be reasonable to ask the employee to put their initial request in writing.
  • Where a formal flexible working request has been lost, the employee can be asked for a copy but insisting they provide one could be seen as unreasonable. Instead, arrange a meeting with the employee to clarify the details of their request. Stalling the process at this stage could lead to a lengthy stand-off.
  • A flexible working meeting can be held to discuss the request, the practicalities of agreeing the request and whether any alternatives can be agreed. The outcome should not be pre-determined.
  • An appeal should always be offered where the request is declined, even if the employee appears to be content with the decision.
  • The flexible working process should be completed within three months of the request being made, unless there is a good reason for failing to meet this deadline. The employer can look to extend this time period, however, they will need to actively seek agreement from the employee to do so.

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