Flexible working – do’s and don’ts

Flexible working is a subject often feared by employers for fear of disruption to the workplace. Similarly, many employees don’t fully understand their rights insofar as flexible working requests are concerned.

Arguably, the most common time for requesting flexible working is following a period of maternity leave when an employee wishes to vary their working pattern, often by requesting reduced hours/part time working, homeworking or job-sharing to accommodate any childcare requirements. Such requests can be on either a temporary or permanent basis. Of course, there are other reasons for requesting flexible working to include caring for dependants and reasonable adjustments where an employee is suffering from a disability.

Flexible working requests are often underused by employees or not dealt with properly by employers who are unaware of the statutory framework that governs the flexible working process. With that in mind, I have set out below some key questions and answers relating to flexible working.

Who is able to make a flexible working request?

Employees with at least 26 weeks continuous service have the right to submit a formal flexible working request pursuant to the statutory scheme. Employees with less than 26 weeks service together with agency workers and office holders do not have any such right.

However, all employees have the right to make an informal request for flexible working, regardless of their length of service or employment status. Employers should still treat such requests fairly in order to avoid allegations such as sex discrimination or disability discrimination.

Any eligible employee can only make one statutory request for flexible working in any 12 month period.

What can a flexible working request entail?

Pursuant to the Employment Rights Act 1996 the change in working pattern must relate to:

  • The hours worked;
  • The times when they are required to work; and/or
  • The place of work.

What should the request include?

In order to be considered under the statutory scheme, a formal flexible working request must be in writing and include the following information:

  • The date of the application, the change to working conditions sought and when the employee would like the change to come into effect;
  • What effect, if any, the employee considers the requested change would have on the employer and how any such effect might be dealt with; and
  • A statement confirming that this is a statutory request and if and when the employee has made any previous application for flexible working.

How should an employer deal with a flexible working request?

There are various obligations on employers when dealing with such requests.

As well as discussing the request with the employee and considering the same carefully with reference to benefits weighed against any adverse business impact, employers must ensure that the request is dealt with in a reasonable way and that the employee is notified of the outcome of their request within the decision period (3 months from the date on which the employee’s request is made or such longer period as the parties may agree).

Employers can only reject a flexible working request either on eligibility grounds or with reference to one or more of 8 business grounds, which include that granting such a request would have a detrimental impact on performance or quality and/or the burden of additional costs.

Whilst the applicable legislation does not provide for a trial period for flexible working there is nothing to prevent the parties agreeing to one. Indeed, the ACAS guide suggests that this may be a more sensible approach, rather than simply rejecting a request.

Employees also have no right to appeal a rejection of their flexible working request but the ACAS Code suggests that they should be allowed to do so.

What are the risks to an employer if a flexible working request is not dealt with properly?

 An employee who has made a statutory flexible working request can bring a claim against their employer on the basis that:

  • The employer failed to deal with their application in a reasonable manner.
  • The employer failed to notify them of the decision on their application within the decision period.
  • The employer rejected the application for a reason other than one of the statutory grounds.
  • The employer’s decision to reject the application was based on incorrect facts.
  • The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

As above, any such failings could result in claims for constructive dismissal or discrimination.

What practical steps can employers take with regard to flexible working?

Employers should ensure that these requests are dealt with fairly and objectively and that employees are not subjected to any detriment due to submitting a flexible working request.

The first step should be to implement a flexible working policy with reference to the relevant legislation and the ACAS Code and to ensure that managers/senior staff are trained with regard to the implementation of that policy. Having a policy in place will help to ensure consistency and transparency in handling requests.

By way of guidance, ACAS suggests that a flexible working policy should:

  • Explain how employees should make a request; including who the request should be made to and what should be covered by the application;
  • Include a statement to the effect that the employer will consider the request and will only reject it for one of the 8 business reasons;
  • State who can accompany the employee at any meeting regarding the request;
  • Explain what arrangements there are for appeals; and
  • Set out the time limits on dealing with requests.

Employees should also be mindful that making flexible working requests at the outset of (or even before) a period of maternity leave isn’t necessarily the best way forward. Whilst it is important to plan ahead where childcare is concerned, this is not always the most sensible approach. An employer’s business needs can change during maternity leave which could impact the ability to accommodate that particular flexible working request by the time the employee is due to return to work.

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