Managing flexible working requests in a year of change

Leo Briggs, deputy head at the Dental Defence Union (DDU) and Alexandra Addington, solicitor at Peninsula Business Services discuss the changes to flexible working and the impact they may have on your dental practice.

The right to make a flexible working request has been around for some time, however, it is one of the many areas where we will witness change in 2024.

Eligible employees can apply for a change in their terms and conditions of employment, including, for example, a change in where they are required to work or to their hours.

On the 6 April 2024, the 26-week service requirement, which was previously needed to make a flexible working request, was removed. This means that an employee, from their first day of employment, can put in a request.

The impact of this change on the dentistry profession will depend upon the make-up of the individual dental practice. This is because only an employee can make a flexible working request. Given that a practice could have individuals who are self-employed, workers or employees, it is important to check the status of the individual asking for a change before proceeding.

Do I have to agree to a flexible working request?

Once it is identified that they are an employee, the owner and/or practice manager will still be able to refuse such a request, as long as that refusal falls within one of the eight reasons provided in the current law. This remains unaltered by the recent changes.

Given the nature of many roles in the dental industry, it may well be the case that a request cannot be agreed to. A dental nurse, for example, will need to be at the practice during opening hours when patients are booked for treatment. A request to work outside of these times may not be possible because of the face-to-face nature of the role and as it is so interlinked with others.

The same, however, may not apply to a receptionist as a practice may be able to accommodate their request to work partly outside of patient appointment hours to extend reception availability. It will all depend on what the change is and the particular role. If the dental nurse wanted to work different hours but within practice opening hours, it might be possible to accommodate this.

Correct facts

What is crucial when dealing with a request, is to ensure that the proposed change is considered carefully. If the outcome is to refuse the request, the refusal must be based on correct facts.

This was illustrated in a recent employment tribunal (ET) case of Wilson v Financial Conduct Authority. An employer rejected the employee’s flexible working request to work from home because she would miss face-to-face training sessions, departmental away days and meetings. The statutory reason relied upon was that it would cause a detrimental impact on her performance and quality of work.

The employee, however, alleged that the decision had been based on incorrect facts. The ET found that the employee’s manager had clearly considered the impact that the employee’s request would have on her ability to perform individual parts of her job and identified the potential risks to the employee’s performance so found in the employer’s favour.

Whilst this was a request to work from home, which will not always be the case, it illustrates how a tribunal will assess the ‘correct fact’ requirement.

What else is changing?

There are four further changes expected at some point, although at the time of writing, it is not yet clear whether they will also come into force on 6 April 2024, or later. They are:

The number of flexible working requests an employee can make in 12 months will increase from one to two

Employers will have to consult with the employee before refusing a request

The timeframe in which an employer must deal with the request will reduce from three to two months

The requirement on an employee to set out the impact of their requested arrangements will be removed.

Top tips for dealing with flexible working requests

A good starting point is to make sure you have a policy which clearly sets out how an employee can make a request in your practice and all relevant staff should be trained in how to deal with flexible working requests.

If a request is denied, the reasons for refusal will always be at the heart of the matter, therefore, such a decision will need to stand up to scrutiny. Making sure that staff have enough time to fully deal with a request and explore it thoroughly is important.

Remember that some employees might request a change to their terms of employment because of a disability. Practices have a legal obligation to make reasonable adjustments for employees with a disability, so, this will need to be fully considered where appropriate.

If there is a question mark over whether or not the proposed way of working is suitable, a trial can always be agreed with the employee – try it out and see whether it works.

Finally, it may be that going through the process of looking at the role in detail reveals opportunities for alternatives to the employee’s request to find a mutually agreeable solution.

Staff wellbeing is important. DDU GROUPCARE ensures dental practices and corporate members get access to free 24-hour employment law advice line from Peninsula, a leading provider of employment law and health and safety services in the UK.

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