Commentary on Sections Miscellaneous 80G Employers’ duties in relation to applications under section 80F
129.Regulations will be made concerning an employer’s duties in relation to dealing with applications for flexible working.
130.When an employer receives a request it will be their duty to accept it or to establish the business case for rejecting it and they will need to follow a prescribed procedure to ensure and demonstrate that the request has been properly dealt with. The aim is to encourage dialogue between the employer and employee in the workplace about changing work patterns and how to meet both parties’ needs.
131.There will be occasions where an employer believes that they are unable to accept a request. In order to reject an application they must, in their opinion, have specific business grounds for doing so. Subsection (1) (b) specifies what each of these are:
	The burden of additional costs;
	Detrimental effect on ability to meet customer demand;
	Inability to re-organise work among existing staff;
	Inability to recruit additional staff;
	Detrimental impact on quality;
	Detrimental impact on performance;
	Insufficiency of work during the periods the employee proposes to work; and,
	Planned structural changes.
132.There is a power to make regulations to add to these grounds if the Secretary of State becomes aware of other grounds that should be included. The section contains all those identified by the Taskforce. Employers will not be able to simply tick a box saying one or more grounds exist but will have to provide sufficient explanation to the employee of why, in their opinion, the ground applies to their business and why it results in the refusal of the application.
133.Subsection (2) identifies regulations that are intended to outline the procedure for dealing with an application for flexible working. In practice, the intended procedure will work as follows:
	A request is received specifying the desired working pattern, the date from which it is proposed it should apply, and explaining what effect the employee thinks the change will have on the employer and how it might be accommodated. The employee will have to explain why they are eligible under the right to make an application.
	The employer arranges a meeting within 28 days of receiving the application to discuss the request. The employee is able to bring a representative if they wish.
	The employer writes to the employee within 14 days of the meeting either (i) agreeing the new working pattern, any action on which it is dependent, and a start date; or (ii) confirming any compromise suggested and the start date; or (iii) setting out the business reasons and an explanation of why the request cannot be met, together with details of how to appeal if the employee is not content with the decision.
	An employee has 14 days following the notification of their employer’s decision to appeal.
	Within 14 days of being informed that the employee wishes to appeal the employer should arrange a further meeting to hear the appeal. The employee may be accompanied by a representative if they wish.
	The employer must provide a decision within 14 days of hearing the appeal.
134.The practical details of the procedure for both employees and employers will be specified in regulations. This is to ensure that all the details can be kept together. It is the intention that these will define how the meetings are to be arranged and the arrangements for postponement in circumstances where one of the parties is unable to attend. The regulations will explain who can accompany the employee. It is the intention, as the Taskforce recommended, that this will be a fellow employee, friend or appropriate recognised trade union representative. The Taskforce did not want unduly to limit the people who could accompany the parent making the request and preferred a wider formula that would encompass all expertise in this area. The Government intends to consult widely on this issue. The regulations will also detail the points that will need to be covered when informing the employee of the employer’s decision. Where an employer rejects an application the intention is that the employer should set out their business reasons (which will have to be from the list shown above) backed up with an explanation of the reason why, in their opinion, it applies. This is to help the employee understand why the employer has arrived at his decision and to help demonstrate that the request has been considered seriously. It is envisaged that a couple of paragraphs will usually be sufficient. The intention is that the guidance to accompany the right will include a variety of differing examples for each of the business reasons. One illustrative explanation might be:
““I am sorry that I cannot grant your request to leave at 3:30pm each day as this will severely effect our ability to meet customer demand and I am unable to cover your absence.  You are currently the only certified forklift truck driver that works at the end of the day and it is essential that we are able to load the lorries for over-night delivery.  Due to the fact that we supply perishable goods it is not possible to load the delivery lorries any earlier in the day.  I have spoken with our other two forklift truck drivers, and they are presently unable to change their hours.  I also advertised in the local paper when Sam left and notified the Job Centre of the vacancy but could not find anyone to cover his job.  As that was only two months ago it is not appropriate to go through the process again now.””
135.The regulations will also cover the appeal process. The intention is that the employee will have to set out the grounds for their appeal. These grounds may include, but need not be confined, to the following: concern that the procedure has not been properly followed, that the business reasons for rejecting the request have not been sufficiently explained, or that a fact in the explanation of the business reasons is incorrect. The intention is that the appeal should be held with a more senior manager than the initial meeting where possible. This will not always be possible especially for small businesses. The regulations will also explain the points that the employer should cover when informing the employee of the outcome of the appeal. The intention is that the employer should give a sufficient explanation, building on the earlier communication where appropriate. Where the procedure has been followed correctly (either up until the appeal stage or through the appeal stage itself) then it is the Government’s intention that the employee should not be able to claim a grievance against the employer when informed of the outcome just because they do not like it. It is intended to make use of the regulations elsewhere in the Employment Act to disapply the three-step grievance procedure in these circumstances. It is also the intention that the regulations will allow for the appeal to be heard as part of an employer’s established procedure for handling appeals on other issues, as long as the timescales are no less than those for the appeal procedure described above. This is to encourage the employer and employee to use all the avenues open to them to try and find a satisfactory outcome.
136.Subsection (3) enables regulations under subsection (1)(a) to disapply any part of the procedure if an application is agreed or withdrawn; to provide for an application to be treated as withdrawn in specified circumstances; and to provide for a time limit to be extended, for example if the employer and employee agree the extension.
137.Regulations will allow for:
	Changes to the procedure where there is agreement between both parties. For example, the employer may feel able to accept the request immediately and thus a meeting would be inappropriate.
	Changes to the timescales where there is agreement between both parties. This is to cover circumstances where it may be extremely difficult for one party to follow a certain part of the procedure. For example it may be that during the meeting to discuss the request an alternative is identified but further information is needed to ensure that it is workable. It may not always be possible in the circumstances for this information to be obtained within the two weeks the employer has to notify the employee of their decision. It is the intention that the regulations will specify how the agreement to postpone is to be handled and recorded.
	The request to be treated as withdrawn in some circumstances. The intention is that where an employee fails repeatedly to attend the meeting and to answer letters without proper explanation then the employer should be able to conclude that the employee no longer wishes to pursue the request to work flexibly.
138.Subsection (4) allows Subsection (2) to be amended by order. This enables the procedure for making an application to be changed at a later date if it is found necessary to do so.