Employment law- flexible working
All employees with 26 weeks or more service have the right to request flexible working.
What is flexible working?
It is a variation of your working pattern and can be achieved in a number of ways, for example by working from home, part-time working, flexi-time, job sharing and shift working.
What rights do you have?
The right is to request flexible working from your employer. It is not a categoric right to be given flexible working. This is an important distinction (see how your employer must deal with your request below).
Who can make the request?
All employees who have 26 weeks’ service will be eligible to submit a flexible working request, regardless of whether they have caring responsibilities for children, or an adult dependent. Employees who have been employed for less than 26 weeks, agency workers, and office holders do not have a statutory right to request flexible working.
How should you make the request?
There is a statutory procedure set out in the legislation. You must make the request in writing, setting out:
- the date of the application, the change to working conditions you are seeking, and when you would like the change to come into effect.
- what effect you think the requested change would have on your employer and how, in your opinion, any such effect might be dealt with.
- that this is a statutory request and whether you have made a previous application for flexible working, and if so, the date of that application.
Can your employer consider a request for flexible working for a limited period only?
Yes. This may be, for example, to cope with bereavement or to pursue a short course of study. You would then return to your old terms and conditions. A further statutory request for variation could not then be made for a period of 12 months, although an agreement can still be reached with your employer separately.
Are employers still obliged to deal with requests if the statutory application is not followed?
Employers are only required to deal with requests from employees who have followed the correct statutory process. Although it would be good practice for employers to inform you if the correct process hasn’t been followed, they are not obliged to do so.
How should employers deal with requests under the new rules?
Employers are required to consider requests objectively and in a “reasonable manner”. They must notify an employee of their decision within 3 months of the request being made, unless an extension is agreed.
What does “reasonable manner” mean?
An employer is expected to hold a meeting with you to discuss the request in a timely manner and, having carefully considered the request, should then communicate the decision to you. This can be by phone or by some other agreed way – it doesn’t have to be in an actual meeting. An employer must provide clear business reasons for any rejection.
What are the grounds that an employer can reject a flexible working application on under the new rules?
The new rules do not alter the previous basis on which an employer is entitled to reject a flexible working request. A rejection can be made if there is:
- the burden of additional costs
- a detrimental effect on an ability to meet customer demand
- an inability to re-organise work among existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- an insufficiency of work during those periods the employee proposes to work
- planned structural changes (for example, where
the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans)
Is an employer’s rejection final, or can it be challenged?
There is no obligation to provide you with an appeal, unless this is part of company policy, although it is good practice (as advised by ACAS) to have an appeals process. The decision whether or not to refuse a request is a subjective one for employers, but if a rejection is based on incorrect facts, it could be formally challenged by the lodging of an internal grievance or by an application to an employment tribunal. A tribunal can award compensation of up to 8 weeks salary, which is capped at a weekly salary level of £479.00 as at 2016.
How can a challenge be made for discrimination following a refusal to grant a flexible working request?
An unjustified refusal of a flexible working request may amount to indirect sex discrimination. This could occur when, for example,
there is a provision, criteria or practice (PCP), such as full-time working, which applies to all employees. The PCP in this situation would put women at a particular disadvantage compared to men as it is mainly women who work part-time to care for children and may not so readily
arrange childcare. Your employer would need to show that the PCP (e.g. full-time working) is justified bearing in mind your requirements to work full time and the needs of the business.
A refusal of flexible working to a man may also amount to direct discrimination if a woman in a similar situation would have been granted it.
Do I have the right to work flexibly following my return from maternity leave?
Will it now become illegal for employers to give priority to people who are parents or carers?
The guidance from ACAS makes it clear that employers are not required by the law to make value judgments about the most deserving request; an employer should consider each case on its merits, looking at the business case and the possible impact of refusing a request.
An employer could, therefore, face a claim for indirect discrimination by non-parent and carer employees if it consistently gave more weight to requests from parents.
How should an employer deal with competing requests for flexible working?
The guidance from ACAS suggests that (with the employees’ agreement) a random selection (such as pulling names from a hat), may be the best approach. Alternatively, a temporary or trial period could be agreed, with regular reviews.
If an employer approves the request, does it represent a permanent change to the employee’s terms and conditions?
Yes, it will represent a permanent change with no right to return to the original terms in the future, unless otherwise agreed.
What are the pros and cons of flexible working?
Some obvious benefits to employers include:
-a happier, loyal, and more productive workforce, together with a possible reduction of sick days;
-it is a perk that could encourage talented job-seekers to work for a particular company;
-it can enable employers avoid redundancies;
-it shows that a company is progressive and listening to the needs of its staff;
-there is a cost saving to employers, who may be able to save office rental with more employees working at home;
-staff can save on commuting time and costs of travel;
-employers can handle more business outside normal office hours.
Conversely, there are some risks on both sides, which include:
-employers may have difficulty dealing with competing requests from staff to work flexibly. How will employers deal with this?
-there could be resentment amongst staff who have had their requests denied, whilst others have been accepted;
-employers may feel a lack of control over how the work is being carried out;
-a lack of contact with colleagues at the office could limit the cohesiveness of teams and exchange of ideas;
-employers will have to ensure that staff have the correct tools in place where remote work is being considered. Does the technology support the remote working that is envisaged?
-there needs to be an assessment of risk for those staff working remotely. Will their health and safety be in danger, and if so, what protection will employers need to implement to deal with this? There would need to be a proper assessment of all risks and appropriate insurance cover in place, otherwise employers could be seriously exposed.