Flexible working practices can be beneficial not only to your workforce but also to your business. For employees, making a flexible working request, flexible working can offer a better work-life balance. Employers may benefit from improved performance and productivity, as well as a reduction in absenteeism and staff turnover.
Flexible working may also facilitate the provision of a more comprehensive or round the clock customer service to meet growing customer demands.
Under current rules, most employees who have worked for the same employer for at least 26 weeks have the legal right to request flexible working by making a ‘statutory application’. When dealing with a flexible working request it is important to understand your statutory duties and obligations as an employer, and how to fairly manage such requests whilst meeting the operational needs and objectives of your business.
What is flexible working?
Flexible working is any type of working arrangement that gives some degree of flexibility in a normal working pattern. This can relate to the number of hours an employee works, the times that an employee is required to work, or the place of work. Varied shift patterns, overtime, part-time and term-time working can count as flexible work. More typical examples include:
- Flexitime – where employees are required to be at work within a specified core period but otherwise are able to work their contractual hours to suit.
- Staggered hours – where employees start and finish work at different times.
- Compressed hours – where employees work their usual full time hours but in fewer days, for example, a five-day week is compressed into four.
- Annualised hours – where employees working hours are calculated as an annual total but the pattern of work can vary from week to week.
- Job-sharing – where a full-time post is divided into two or more part-time roles, with employees working at alternate times to share the workload.
- Homeworking – where an employee regularly carries out all or part of their duties from home rather than on business premises..
The statutory right to request flexible working
The statutory provisions relating to flexible working are set out under the Employment Rights Act 1996 (as amended) and the Flexible Working Regulations 2014. Under these provisions an employee has a statutory right to ask you for a change in their terms and conditions of employment to work flexibly.
This entitlement arises provided they have been in continuous employment with you for 26 weeks at the date that the flexible working request is made. This right applies to all types of employee, including temporary workers and workers on fixed term contracts, although agency workers are specifically excluded under the Act.
Historically the statutory right to request flexible working only applied to those caring for children or adults. Under the current legislation any eligible employee, irrespective of their caring responsibilities, can apply to work flexibly for any reason. Given the mutual benefits of flexible working, many employers will also accommodate non-statutory flexible working requests for employees with less than 26 weeks’ service.
The application for flexible working
Under the statutory provisions a flexible working request must be made in writing and contain the following information:
- the date of the application;
- a statement that it is a request for flexible working;
whether the employee has previously made any such application to the employer, and if so, when;
- the change to working conditions that the employee is seeking and when they would like the change to come into effect;
- what effect, if any, the employee thinks that the requested change would have on you and how, in their opinion, any such effect might be dealt with.
An employee can only make a single statutory request during any one twelve-month period to the same employer.
Dealing with a flexible working request
Whilst the statutory entitlement to make a flexible working request does not give the eligible employee an absolute right to work flexibly, it places a duty on you as the employer to deal with the request ‘in a reasonable manner’.
Upon receipt of a request you are under a statutory duty to reach a decision and notify the employee of that decision within three months from the date of the application, or any further period as may be agreed.
If there are sound business reasons weighing against a change in working conditions, you may refuse the grant of the flexible working request. The Employment Rights Act 1996 provides that in refusing a request you must consider that one or more of the following grounds are applicable:
- 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 for the periods the employee proposes to work
- planned structural changes to the business.
Once an application for a flexible working request has been received, and where considered necessary, it is good practice to arrange a meeting to discuss the request. This should be done as soon as possible so that you can reach a decision, and inform the employee of that decision, within the required timeframe. It is also good practice to allow an employee to attend any meeting with a work colleague or trade union representative.
A meeting will give you the opportunity to explore the reasons why the flexible working request has been made, although an employee is not obliged to disclose these to you. You may also want to look at alternative solutions to accommodate the requested change.
If the employee fails to attend two or more meetings without good reason you are entitled to treat the application for a flexible working request as withdrawn.
Refusing a flexible working request
If you decide to reject the application for flexible working you should clearly set out your reasons for so doing in writing and explain any appeals process that you are prepared to offer.
An employee has no statutory right to appeal your decision. That said, an appeal may provide further opportunity to find a solution or, alternatively, to explain the reasons for refusing to grant their flexible working request. In this way, you may minimise the likelihood of the employee raising a grievance or complaint against you about the way in which you have dealt with their request. In circumstances where you do make provision for any appeal of your decision, this must still be done within the required timeframe.
Avoiding unlawful discrimination in refusing a flexible working request
When dealing with a flexible working request you must be careful not to directly or indirectly discriminate against an employee by reason of their age, sex, disability, race, religion or belief (or any other protected characteristic) as defined by the Equality Act 2010.
By way of example, when dealing with a request from an employee suffering from a disability, flexible working hours may be regarded as a reasonable adjustment under the 2010 Act to ensure that an employee is not unfairly disadvantaged and can adequately cope with the demands of the job.
Implementing flexible working
Where you grant the flexible working request, you will need to notify the employee of the agreed change, together with a start date for the new working arrangement. You should also formalise any change by incorporating the new terms and conditions into their contract of employment.
In circumstances where you are reluctant to reject the flexible working request outright but are unsure whether the proposed change will work, you may agree to a temporary or trial period. Again this should be put in writing to make it clear that this is only a temporary variation to the employee’s working conditions.
Flexible working complaints
If you fail to consider a flexible working request in a reasonable or timely manner, or otherwise fall short of the statutory requirements, or alternatively you refuse a request based on incorrect facts, an employee may lodge a complaint against you in the employment tribunal.
Where the tribunal finds in the employee’s favour, it may order you to reconsider the application for a flexible working request. You may also be ordered to pay financial compensation.
It is good practice to have in place a clear policy to ensure that employees understand the process of making and dealing with flexible working requests. It can also help to ensure that any application is handled fairly and consistently in accordance with the statutory requirement to deal with flexible working requests in a reasonable and timely manner.
That said, agreeing to one request should not set a precedent for another similar request. Further, if two requests are made closely together are you not required by law to make value judgements about the most deserving case. You will need to examine each flexible working request on a case-by-case basis, based on relevant business considerations at the time the application is received.
A published code of practice entitled ‘Handling in a reasonable manner requests to work flexibly’ is available from the Advisory, Conciliation and Arbitration Service (ACAS). This is a non-statutory code that you are not legally bound to follow, although its guidance will be taken into account by an employment tribunal if the employee lodges a complaint against you for a refusal to grant a flexible working request.
Seeking legal advice
The law relating to flexible working requests can be difficult to apply in practice, not least the application of the statutory reasons for refusing a request. As an employer, any decision to refuse a change in terms and conditions of employment to work flexibly is open to challenge.
It is therefore important to seek expert legal advice from an employment law specialist if you are contemplating creating a flexible working policy, or you are currently faced with a grievance or complaint relating to a request to work flexibly.
A lawyer experienced in employment law matters can help you to implement a fair workplace policy in accordance with the ACAS code of practice, as well as providing advice and representation for any grievance or complaint relating to a flexible working request.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.