Flexible working requests are on the rise as employees seek working hours tailored to their lifestyles. Here our expert employment law solicitors look at your obligations as an employer in dealing with requests from employees for flexible working hours, helping you to follow the necessary guidelines to stay compliant, support your employees and protect your business interests.
We’ll cover:
- Can anyone ask to work flexibly?
- What types of flexible working can employees ask for?
- Is there a set procedure for flexible working requests?
- Can I refuse a statutory request for flexible working?
- Is there any practical guidance for employers about flexible working requests?
- Can an employee complain about a refusal?
- Other issues to be aware of
- Do I need a flexible working policy?
Can anyone ask to work flexibly?
There’s no right to flexible working under current employment legislation, only a right to request flexible working.
But the statutory right to request flexible working extends to all employees with 26 weeks of continuous employment (service with an associated employer or prior to a TUPE business transfer will count). Since 30 June 2014, the right to request was extended from being limited to parents and carers to being available to:
- an employee (whether permanent, full-time, fixed term or part-time) working under a contract of employment – not a worker, contractor, or agency worker. Employment status is notoriously complex and the question of whether or not someone is an employee is not an easy one to answer, for specific guidance, contact our employment solicitors; and
- the employee must have at least 26 weeks' continuous employment with the employer they are making the application to (or when added to a previous employer’s employment if the employee has been transferred under TUPE) at the date the request is made; and
- only one statutory flexible working request can be made in any 12-month period.
It’s important to remember that there’s nothing to stop a worker who doesn’t have employee status (or an employee who has already made a request in the last year) asking if they can work flexibly. The statutory rules wouldn’t apply, but a refusal could, in certain circumstances, be discriminatory.
What types of flexible working can employees ask for?
Under the flexible working legislation, the type of changes a request can relate to are changes to hours worked, the times required to work and the place where the work is carried out – as between home and workplace.
This can include:
- Applications for flexi-time
- Part-time working (if working full-time)
- Full-time working (if working part-time)
- Homeworking
- Job sharing
- Staggered hours
- Compressed hours
- Term-time working
- Shift working
Is there a set procedure for flexible working requests?
The employee must make a written and dated request, saying:
- That the application is being made under the statutory procedure.
- What change they seek.
- When the change would start, and finish if intended to be temporary.
- What effect the employee thinks the change to their working arrangements would have on their employer, and how this could be dealt with.
- That this application is being made to request a reasonable adjustment under the Equality Act, if this is the case.
- Whether they have made another application in the last 12 months and if they have, the date(s) of the application(s).
The employer then has three months from the date of receipt of the employee’s request to consider the request and tell the employee their decision. (This period can always be extended by agreement, which it is advisable to put in writing.)
The law says the employer must deal with the request ‘in a reasonable manner’. You should ensure that you comply with The Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly (ACAS Code) as if your employee complains about the way in which you have dealt with their flexible working request under the statutory scheme, tribunals must take the ACAS Code into account where relevant.
An employer who receives a flexible working request under the statutory scheme must:
Deal with it in a reasonable manner - Whilst statute does not define what dealing with a request in a ‘reasonable manner’ means, both the ACAS Code and ‘The right to request flexible working: an ACAS guide’ make recommendations including discussing the request with the employee as soon as possible after receiving their written request, unless the employer understands the request in full and wishes to approve the request without any amendment.
Inform the employee of their right to be accompanied - Employees should be told before any meeting to discuss their request, about their right to be accompanied by a work colleague or Trade Union Representative at any meeting or at any appeal meeting. The meeting should be held somewhere private at a time to suit the employer and employee. If the employee does not attend a meeting and any subsequent rearranged one without reason, then the employer will be allowed to deem the request to have been withdrawn.
Discuss changes to terms and conditions - If there is likely to be a delay in discussing the request with the employee, the employer should let them know as well as if the change might result in a detrimental change to terms and conditions including a lower salary, bonus or pension entitlement. Changes to terms and conditions such as practical requirements to attend team meetings and appraisals at regular intervals, if changing to homeworking, should also be considered before the working arrangements change. Employers are required to provide a statement of the changes within one month.
Confirm your decision - Careful consideration must be given to the request, looking at the benefits for the employee and the employer's business and weighing these against adverse business impact caused by the proposed changes. The employer must then let the employee know their decision in writing as soon as possible, either that they accept the request, confirm a compromise agreed during discussion or reject the request on grounds of eligibility or for one or more applicable business reasons.
The employer must notify the employee of the decision, including the decision on any appeal, within the decision period, which is three months beginning with the date on which the employee's request is made or a longer period, if agreed.
Whilst the legislation does not provide for trial periods, and an employee cannot insist on a trial period, these can be agreed between the employer and employee instead of an employer rejecting the request. It is recommended that the terms for a trial period are set out in writing, the decision period is extended, and review points agreed so that the employer and employee can discuss how the new arrangements are working and make any necessary adjustments.
Can I refuse a statutory request for flexible working?
If an employee is eligible to apply for flexible working, you can only refuse a flexible working request by giving at least one of the eight business reasons listed in the legislation.
These are:
- You already have planned structural changes.
- There’ll be an additional costs burden.
- There’ll be a detrimental effect on quality.
- There’ll be a detrimental effect on performance.
- You won’t be able to recruit additional cover staff.
- You won’t be able to reorganise work among existing staff.
- There’ll be a detrimental effect on your ability to meet customer demand.
- There’s insufficient work during the hours the employee proposes to work.
Technically, a request isn’t valid if it isn’t in the format set out in the legislation, but we wouldn’t recommend rejecting it on this basis.
Likewise, although a statutory request can’t be made by someone who isn’t an employee, as explained above, this is a complex subject, and it is advisable for employers to seek professional legal advice before refusing to consider the request on this basis.
Is there any practical guidance for employers about flexible working requests?
The starting point for practical advice on the right to request flexible working is the ACAS Guide. Unlike the Code, it doesn’t have to be taken into account by tribunals, but it does contain some useful examples of scenarios where one of the business reasons for rejecting a request might apply:
- Additional costs burden – two employees ask for a job share but insist on working three days a week each, rather than 2.5.
- Inability to rearrange work – the employee making the request has particular skills that other employees don’t have.
- Performance will suffer – the employee is a manager asking to work from home and the job is one where visibility in the office is essential.
- Insufficient work during the hours the employee wants to work – a call centre employee wants to work at times when there will be very few calls, as most calls are from a country with a significant time difference.
- Structural changes – a café worker asks for a later start at the same time as the employer is changing to earlier opening hours.
On the other hand, the Guide indicates that employers must deal creatively with requests – for example, if they already have several employees working flexibly and they can’t accommodate a further request, they should consider asking for volunteers to revert to normal hours. They should also consider a trial period rather than rejecting a request out of hand.
Can an employee complain about a refusal?
Yes, an employee has three months to complain to a tribunal about a request being refused after the employer’s final decision has been given to the employee and the time limit including any agreed extension, have expired. But the tribunal cannot question the employer’s business reasons. The tribunal’s role is restricted to:
- Reviewing the procedure – whether the employee was told of the decision within three months.
- Considering whether the employer handled the request in a reasonable manner – have they weighed up the pros and cons?
- Looking at whether the reason given falls within the eight permitted business reasons and was based on correct facts.
- Assessing whether the employer treated the application as withdrawn but the grounds entitling the employer to do so did not apply.
The tribunal can order reconsideration of the request, but compensation is limited to a maximum of eight weeks’ pay, capped at the statutory weekly limit. The rules about ACAS early conciliation apply – the employee must go through ACAS pre-claim conciliation before lodging their claim with the tribunal. ACAS refers the matter to a conciliation officer who will attempt to encourage a settlement agreement.
Other issues to be aware of
It’s essential to remember that, whether or not a request for flexible working falls under the statutory scheme, there are potential discrimination issues around dealing with requests. For example, if an employee has a disability or the request is made in relation to childcare, or for religious reasons, a refusal could amount to indirect discrimination or failure to make reasonable adjustments for a disability. It can even lead to direct discrimination, for example where requests related to childcare are routinely allowed for women but not for men, or where flexible working is allowed for those with young children but not for older employees.
Where a complaint of direct discrimination is made, unless it’s direct age discrimination, if the complaint is upheld, there can be no justification. However, if the complaint is one of indirect discrimination as a result of any refusal of a request, you’ll have to justify your decision and business reasons.
Protection from discrimination in the workplace covers job applicants, employees, workers and even some self-employed people (broadly, if they are contracted personally to do the work). It’s important to note as well that an employee does not need two years’ service to bring a discrimination claim and that compensation for unlawful discrimination is not capped.
Whilst rejecting a flexible working request on a technicality because there was an error in the application made by the employee is an option, it is advisable to point out the error to the employee and allow them to remedy this instead of rejecting the application outright.
Employers should be mindful that Tribunals often criticise employers which start with an obstructive or negative attitude to a flexible working request rather than giving serious consideration to how it could work.
Do I need a flexible working policy?
It’s a good idea to have a policy; it will help you to be consistent in responding to multiple requests, as well as reducing the scope for misunderstanding.
By having a policy, you can be clear about issues such as:
- How to make an application (and who to send it to).
- The need for employees to make it clear if their request is linked to childcare, disability, or religious reasons – this will alert you to potential discrimination issues.
- Time limits for dealing with requests.
- What meetings there will be to discuss the request and who the employee can be accompanied by.
- Whether any flexible working will be subject to a trial period/review points.
- The eight business reasons that allow requests to be rejected.
- The appeal process following a rejected request.
- The effect of granting a request on the employee’s terms and conditions, such as salary, bonuses, pension entitlement and whether a new contract or side letter will have to be signed.
- What happens if the request is granted and later the employee wants to revert to the previous arrangements?
- Logistics around working from home.
You should also cross refer to your equal opportunities policies, to cover issues such as religious requirements and disability reasonable adjustments. It is advisable to make it clear in your flexible working policy that the policy is non-contractual and that you can amend it at any time.
