Flexible working Advice for Employers

Flexible working can benefit employees and employers. The benefits can include an improved work-life balance, allow for caring responsibilities, and increase job satisfaction. Requesting flexible working can be difficult. An employer may not want to agree to a request for a variety of reasons.  Those reasons may not be justified.  If you believe your employer has acted unfairly in dealing with a flexible working request, you should take legal advice from our specialist employment law solicitors.

Who can apply for flexible working?

Only employees have a statutory right to request flexible working.  The right does not apply to self-employed contractors, consultants or agency workers. There is no automatic right to be granted flexible working.

To be eligible to make a statutory request flexible working, you must:

• be an employee
• have 26 weeks’ continuous employment at the date the request is made
• not have made a request in the previous 12 months.

The statutory right is governed by the Employment Rights Act 1996 (ERA). However, there is nothing preventing you from making an informal request for flexible working outside of the statutory process. While your employer will not be obliged to follow the statutory procedure in response to an informal request, a refusal without appropriate consideration could give rise to a possible claim (see below).

What kind of flexible working change can you request?

Assuming you are an eligible employee, you may request a change to your employment terms if the change relates to:

• your hours of work
• the times when you are required to work
• your place of work (e.g. a different site operated by your employer).

The scope of the flexible working request includes applications (among others) for:

• part-time working
• full-time working (if currently part-time)
• annualised hours
• compressed hours
• flexi-time
• homeworking
• job-sharing
• self-rostering
• shift-working
• staggered hours
• term-time working.

How do you make a request for flexible working?

Assuming you are an eligible employee, your statutory request for flexible working must:

• be in writing
• be dated
• state that it is a statutory request
• specify the change that you are seeking and when you wish the change to take effect
• explain what effect, if any, you think the change will have on your employer and how any such effect could be dealt with
• state whether you have previously made a statutory request for flexible working to your employer and, if so, when.

How should your employer deal with a flexible working request?

On receipt of a flexible working request under the statutory process, your employer must:

• deal with the request in a reasonable manner
• hold a meeting with you to discuss your request
• allow you to be accompanied to the meeting
• allow you the opportunity to appeal its decision
• notify you of its decision, including any appeal within 3 months of the request (unless otherwise agreed with you)
• only refuse your request on one or more of the statutory grounds:
  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes.

The statutory process is governed by the ERA and Statutory Code of Practice: Handling in a reasonable manner requests to work flexibly (Acas Code of Practice).

What happens after your employer has reached its decision on your flexible working request?

If your employer accepts your flexible working request, or you reach agreement on a variation of your original flexible working request after discussing this with your employer, the new work pattern will be a contractual variation to your employment, unless otherwise agreed (e.g. for a trial period).  Your employer should issue with a written statement of changes to your terms and conditions within one month of the changes taking effect.

If your employer accepts your flexible working request but for a trial period only, review points should be agreed with your employer. Your employer should also extend the 3-month decision period if the flexible working arrangement ends after the trial period.

If your employer rejects your flexible working request, it should provide you with the opportunity to appeal its decision.  Although there is no statutory right of appeal the Acas Code Practice recommends this. A flexible working request should only be rejected on one of the statutory grounds, which is a subjective test. If you are not an eligible employee or you fail to comply with the statutory procedure.

What happens if you cannot attend a meeting to discuss your flexible working request?

Your employer will be entitled to notify you that it has decided to treat your conduct as a withdrawal of your flexible working request where:

• without good reason, you have failed to attend both the first meeting arranged by your employer to discuss your flexible working request and the next meeting arranged for that purpose
• without good reason, you fail to attend both the first appeal meeting arranged by your employer to discuss your appeal and the next meeting arranged for that purpose.

What can you do if your employer has failed to deal with your flexible working request properly?

You may be able to bring an employment tribunal claim if you have made a flexible working request under the statutory procedure and your employer:

• failed to deal with your application in a reasonable manner
• failed to notify you of its decision within 3 months
• rejected the application for a reason other than one of the statutory grounds
• rejected your application on incorrect facts
• treated your application as withdrawn but neither of the grounds entitling your employer to do so applied.

Except for the last ground, an employment tribunal claim cannot be brought until either:

• your employer has notified you of its decision on the application
• the decision period applicable to the application, including any agreed extension to that period, has come to an end.

A claim must be received by an employment tribunal within 3 months (i.e. 3 months less 1 day) of:

• the date of the decision
• the date the decision period ended
• the date you were notified your flexible working request had been withdrawn.

The time limit is a strict one and will only be extended in certain circumstances.

How can we help?

Flexible working may be the only way of you are able to continue working for your employer.  If you have made a flexible working request and it has been rejected by your employer, we can help you. Davenport Solicitors are on hand to help you to get a fair outcome for your claim as quickly and easily as we can. Wherever possible we will seek to resolve your claim without the need for an employment tribunal, saving you time, money and stress. Contact us here.