For September 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“Our business operates across Great Britain and Northern Ireland. Following the changes on flexible working requests in GB, we updated our Employee Handbook across the business. A new-start in NI has made a flexible working request, stating that it is their “day one right.” As this employee is based in NI, we are unsure about how to manage their expectations. How do I handle it?” 

Flexible working is a way of working that suits an employee's needs. Flexible working requests commonly relate to a change in place of work, working days or working hours (for example having flexible start and finish times, or working from home.) 

The legal position on flexible working requests differs slightly between NI and GB following recent changes. In GB, as of 6 April 2024, employees can make a statutory flexible working request from their first day of employment and can make two requests per year. In NI, employees are still required to complete 26 weeks’ continuous service before becoming eligible and can only make one request per year.

While employees have the right to request a flexible working arrangement, they do not have the unequivocal right to havetheir request approved. You can lawfully decline an application based on specific legitimate business grounds – which remain the same in both GB and NI.

Considering this employee’s length of service, they do not have the statutory right to request flexible working under NI law. However, you will need to consider how you deal with their request under your updated flexible working policy.

Firstly, you should check whether your employee handbook or the flexible working policy itself is expressed as being contractual. You should then check whether there is any language which limits specific policies to GB or NI. If the flexible working policy is contractual, and there is no language which excludes its application to this employee, then strictly speaking, failure to follow it would constitute a breach of contract.

If the handbook or the flexible working policy are non-contractual, this allows more flexibility in terms of changing its terms, including to clarify what rights apply in GB and NI. However, at this stage, the default position is that your flexible working policy does not differentiate between GB and NI, meaning that this employee will likely (and reasonably) expect to be treated in the same way as GB employees.

If you do not want to allow the employee to make a flexible working request, you can take the position that this policy does not apply in the same way in NI. Technically, this is not a strong position given its current wording. However, in terms of risk, given the employee’s service they will ultimately be unable to bring a constructive unfair dismissal claim in response to your refusal to consider their request.

If you take this approach, you should speak with the employee, explain the legal position in NI and that they do not have the required continuous service to make a request. You should advise that any future request will be dealt with under the current statutory process in NI, rather than the terms in your policy.

It is quite possible the employee will not be content with this approach and will argue that they are entitled to the policy contained in your Employee Handbook. This may result in a grievance, which you must handle in accordance with your grievance procedure, but ultimately, the employee cannot bring an unfair dismissal claim if you refuse to consider their request, given their length of service.

While the employee does not have the required service to make a statutory flexible working request, they are protected from discrimination as a “day-one” right. There is a risk that this employee will argue that any decision to depart from your UK wide policy contained in your Employee Handbook, with NI employees only, is discriminatory on the grounds of their nationality. This is a subset of race discrimination. For example, they may argue that the decision is directly discriminatory, in that they have been treated less favourably on the grounds of their “Northern Irish” nationality. You would argue that the decision was not discriminatory because it was not made on the grounds of race or nationality, but simply follows the applicable law, which applies to persons of any race or nationality in Northern Ireland.

While discussing the employees request, it would be useful to ascertain the employee’s rationale behind their request if you can. It may be that the flexible working request is because of a medical condition or childcare obligations. The employee may argue that your decision to disapply the policy in your Employee Handbook is discriminatory on the grounds of disability or sex.

A third option may be to inform the employee that while the policy in your Employee Handbook should exclude Northern Ireland, you are willing to consider their request anyway on a discretionary basis. While this is beyond your statutory obligations, it will ensure compliance with your current policy and mitigate the risk of discrimination claims. From an employee relations perspective, it will allow you to treat all your UK employees in a consistent way, despite the current legislative differences.

Taking a consistent approach may be especially attractive given that the Department for the Economy is currently consulting on updating flexible working rules in NI to match GB, as part of the wider “Good Jobs” Employment Rights Bill consultation – meaning that you may be required to treat all requests in the same way in the future. Until then, you might consider tailoring your Employee Handbook to account for the nuances between NI and GB law, to prevent future confusion or disagreement with employees.

Legal Island Training Resources for Your Staff

HR Toolkit | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation? Legal Island has created an HR Toolkit that aims to provide comprehensive training to assist HR professionals in supporting line managers and employees throughout the employee journey. The suite of courses will offer practical advice to assist you in updating your processes and procedures and help you understand your legal obligations.

Click here to view our HR toolkit.