Informal/pre-existing flexitime/banked hours scheme

It was approved by a former manager over 3 years ago

It's probably going to be considered an implied term by custom and practice, then.

the current manager doesn't sign off flexi-time and it is not one of our policies

But it is a form of flexible working recognized by the regulations, so it isn't directly relevant that it falls outside your policy framework, because they would have a legal right to seek flexi-time under the regulations.

The manager now wants to stop the scheme as there is no business need for it

As mentioned, yes, it probably would now be considered an implied term if they were to challenge it. I think the risk of them doing so is quite small, unless they are especially militant. But it will still create conflict with the line manager that can snowball to worse if left unaddressed.

Furthermore, the smart move on their part would be to submit a formal flexible working request to make the arrangement a formal one. As it's been going on for three years with no discernible impact on quality or performance, it would be hard to make a real argument to decline. However, if you're going to make an argument to remove it, it would be worthwhile doing so on the basis of one of the fair reasons to refuse flexible working so this can be referred to in the event of any future formal request.

Also, the eight fair reasons serve as a useful thought tool for managers when asking "why do I want to stop this arrangement?"

Thank you Robey

If your contracts list their hours and you are choosing to now enforce their hours, this is low risk. Custom and practice is quite challenging to prove in a way that overrides explicit contractual clauses.

If that's the case, I would avoid a formal consultation as that is likely to muddy the waters.

Be prepared for several flexible working requests to come in and be clear on what the legal options for rejecting these are. I would look at this with the manager before making any changes - what problem is the manager trying to solve? Why are they unhappy with the current arrangement?

At a guess, the working hours are likely not the problem.

Having a clear way to track banked hours definitely makes flexible schedules easier to manage. 

Hi Sharon

I would definitely say that this is now "custom and practice" as you mentioned and you would need to consult with them.  After this time period, it is deemed a legal contractual right.

Lisa

(Can't see the other responses - been showing error message for ages)

Firstly, it seems somewhat odd that the manager has so little knowledge of the way their staff operate. And do they think thatA stopping this arrangement will result in any benefit to the business? - Indeed, that would be highly likely to result in ill-feeling / disengagement and even conflict and be positively detrimental.

 A sensitively handled and felt fair review and overhaul of TOIL arrangements throughout the workplace might possibly be best? 

I’d probably check the facts a little further before assuming this is either contractual or something you can simply withdraw.

Three years of the arrangement could potentially support an argument around custom and practice, but the key question is whether it was actually treated as an established entitlement by the employer, rather than just something a former manager allowed.

I’d look at how consistently it has been used, whether management knew about it, and whether there is anything in emails, timesheets or other records showing it was approved.

I’d also want to look closely at the variation clause in the contracts. Even where there is a right to vary terms, that doesn't necessarily mean the employer can use it without considering how the arrangement has operated in practice.

Given it has been running for three years, I’d speak to the three employees before stopping it. Explain the business reason, give reasonable notice and consider whether the arrangement can be brought within the existing TOIL/flexible-working framework.