Can an employer change a flexible working agreement if it is already in place?
There will come a time when an employee may wish to reconsider their contractual hours due to a change in personal circumstances, for example a new mother or father may want to make a flexible working request to fit around their family life.
To be eligible to make such a request, the employee must have 26 weeks service. However, it is discretionary if the employer wishes to make an exception for staff with less than 26 weeks service.
The employee must first follow a process, i.e. to complete a flexible working application which is available here
The employee is then invited to attend a meeting to discuss the application. This could be onsite or via video conferencing. The employer would then need to give some consideration to the request (within 3 months) to see if the new days/times is acceptable to the needs of the business.
If not agreed, then the employer has 8 business reason to decline. These are:
- extra costs that will damage the business
- the work cannot be re organised among other staff
- people cannot be recruited to do the work
- flexible working will affect quality and performance
- the business will not be able to meet customer demand
- there is a lack of work to do during the proposed working times
- the business is planning changes to the workforce
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If agreed, the employer could trial it or make it permanent. If trialed, a letter would clearly give an end date which could be successful or not.
Successful Letter
If successful, the employer would write a ‘variation to terms and conditions of employment’ letter. This is now a permanent change to the employee’s contract of employment.
If after a few months the needs of the business has changed, i.e. the department is now much busier, the employer cannot force the employee to revert back to their original hours. It is a permanent contractual change.
The employer could ask the employee if they are interested in changing their working hours but the employer cannot force the change. If the employer makes a unilateral change to the contract of employment and forces the change, the employee has the right to make ‘breach of contract claim’ and/or unfair dismissal.
Instead, it is wise for the employer to look at alternative solutions, for example take on another part time worker.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
