What should an employer do if it receives more than one statutory flexible working request at around the same time and cannot accommodate all of them?
The legislation does not specify any order of precedence in dealing with competing statutory flexible working requests. In general, therefore, the employer can deal with the requests in the way that best suits the needs of the business.
While non-statutory guidance for employers in Handling requests in a reasonable manner to work flexibly: an Acas guide suggests that the employer should consider requests in the order in which they are made, this is not a requirement of either the legislation or the statutory Acas code of practice on handling in a reasonable manner requests to work flexibly. Further, in deciding how to deal with competing requests, the employer should bear in mind the different legal obligations that apply when a request engages issues of indirect discrimination. For example, because women are more likely than men to have primary responsibility for children and for the care of other relatives, a female employee who is refused a request to work flexibly may be able to succeed in a claim for indirect sex discrimination. Likewise, the employer should be aware that a man with childcare responsibilities whose request to work flexibly is refused, may have a claim of direct discrimination if a woman in similar circumstances has, or would have, been allowed to work flexibly.
To find a fair and workable solution when competing requests are made, the employer may wish to find a way of sharing whatever flexibility may be available. This could involve agreeing some sort of rotation whereby the employees take it in turns to work to their chosen pattern. Alternatively, it may be possible to agree a compromise in which the employer agrees changes that go some way towards meeting the requests made by a number of employees, even if no application is granted in full.