In a nutshell
Employees who have at least 26 weeks’ continuous service have the right to request flexible working, if they have not made a similar request in the last 12 months.
There is no requirement to make the request for any particular reason. The ‘flexibility’ requested can be varied – it could be the hours of work (eg wanting to move from full time to part time work), it could be the time of work (eg wanting to start work later in the day) or it could be the place of work (eg wanting to work from home).
The employer must respond to the request within three months of it being made. This includes any time required to hear an appeal. If the request is refused it must be for a sound business reason (the eight reasons allowed are listed below).
Key steps to managing this issue
1. Making a flexible working request
The employee must make their flexible working request in writing. The letter must be dated and the employee must address the following:
- The change that they are requesting and when they want this change to take effect.
- Whether they have previously made a request for flexibility, and if so when that request was made.
- How the change that they are requesting will impact on the business, and how they think that impact can be managed.
- If there is a specific reason relating to the Equality Act 2010 that has led them to make the request. Most commonly, this will be because the employee is disabled as defined in the Equality Act 2010 and is seeking the flexibility as a reasonable adjustment.
2. Responding to the request
The employer must respond with a decision within three months of the date of the request.
If the employer agrees to the request without any concerns it is not essential to have a meeting to discuss the request. However, if the employer is not able to reach immediate agreement the employer must arrange to meet with the employee to discuss the request further. There is no legal right to the employee being accompanied at this meeting, but it would be good practice to allow the employee to bring a colleague or trade union representative to the meeting.
The purpose of the meeting should be to discuss the request and to see if it is possible. This might mean that alternatives are discussed, and an agreement is met which is not exactly what the employee requested. The employer must give serious consideration to the request.
If the employer refuses the request, or makes a counter suggestion which is not acceptable to the employee, the employee can appeal the decision. The appeal should, wherever possible, be held by a manager who has not been involved in the initial discussions. Wherever possible the manager hearing the appeal should be more senior than the manager who refused the request. If this is not possible then another manager who has not been involved in earlier discussions should hear the appeal.
3. Accepting the request
If a change is agreed the employer should confirm this in writing. It should be made clear that this is a permanent change to the employee’s terms and conditions of employment, and that the employee has no automatic right to return to their original contractual terms. If the employee started working in accordance with the agreed change and discovered that this was not to their liking they would have to make a further flexible working request to return to their original terms. They cannot do this for 12 months, because only one request can be made in every 12 month period.
The employer and employee could agree a trial period. If this is agreed it should be clearly documented, so that the end date of the trial is clear and also the way that the success or failure of the trial will be assessed should be clear.
The change could be agreed for a specific period of time (eg for one year only) if that suited both the employer and the employee. If so, this must be clearly documented and what happens at the end of that period of time must be clearly stated.
4. Refusing the request
The employer can refuse the request on one of the following grounds:
- It will be too costly.
- It is not possible to reorganise the employee’s work amongst the existing employees.
- It is not possible to recruit additional employees to cover the work.
- There will be a detrimental impact on quality.
- There will be a detrimental impact on performance.
- There will be a detrimental impact on the ability to meet the demands of the customers.
- There is insufficient work available during the times the employee wants to work.
- There are planned structural changes to the organisation which means that the request will not work.
If the request is refused the employee can appeal. The reason for refusal should be clearly stated in writing to the employee.
5. Further claims
The employee can bring a claim to the Employment Tribunal, arguing that the correct processes have not been followed for considering the request. The Employment Tribunal can only consider the process, it cannot assess whether or not the refusal of the request is reasonable. It can order the employer to reconsider the request following a fair procedure.
If a fair procedure has not been followed the Employment Tribunal can award up to eight weeks’ pay as compensation to the employee. This is capped at the statutory maximum.
If the employee has been treated less favourably because of their sex, their disability, their age or any of the other protected characteristics in the Equality Act 2010 they could bring a discrimination claim. Compensation for discrimination is uncapped.
If the employer refused to consider the request, or treated the employee in a negative way because they had made a flexible working request, the employee could potentially resign claiming that there had been a breach of contract. The employee would then make a claim of constructive dismissal.
- Acas guide to flexible working
- Gov.UK information on right to request flexible working
- Article on advantages of offering flexible working
- Guardian article on flexible working
- Telegraph article on flexible working
- Startups article on flexible working
- FSB article on flexible working
- CIPD factsheet on flexible working
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