Many employers are reporting that, as a result of the pandemic, they are receiving more flexible working requests. This article outlines an employee's right to make a flexible working request and how these should be handled.
Legislation
The statutory right to request flexible working has been around since 2014. Any employee who has 26 weeks’ continuous service and who has not made a previous request in the last 12 months is eligible to request flexible working. (However, some employment policies allow flexible working requests to be made without the length of service requirement).
The legislation is clear that employees do not have the right to work flexibly, but have the right to make a request to their employer for flexible working. The employer has a legal duty to consider the request in a reasonable manner and there are a set reasons for refusing a request.
Flexible working requests can be for:
Reducing hours
A change in working patterns/working times
Job sharing
Working from home (or remotely)
Making a request
The employee must put their request in writing. This application should:
state that it is an application for flexible working
be dated
specify the date on which the employee would like to start flexible working
detail the change that is requested
explain the effects that the employee thinks the requested change would have on the employer's business
explain how the employee thinks any such effects might be dealt with
state whether the employee has made a previous application for flexible working, and if so, the date that application was made.
Employers must deal with any formal flexible working request in a reasonable manner and notify the employee of their decision within three months of the date the request was made.
Once a request has been received, an employer should arrange a meeting with the employee to discuss their request, as soon as possible. This might not be necessary in all cases, particularly if there have been discussions before the employee made their formal request.
The purpose of this discussion is to enable the employer and employee to understand the specifics of request, what changes are being requested, discuss how it might work in practice and how both parties might benefit from the change. At this meeting other implications should be discussed. For example, if an employee is requesting a reduction in hours, the employer should highlight that this would have an impact salary, pension and annual leave entitlement.
Agreeing the request
If the request can be agreed this can be confirmed in writing to the employee, stating the date the change will start. It is also advisable to discuss with the employee how the arrangement will work and agree any other changes as a result of the changing working pattern. For example, if the employee will be working from home there are other considerations. These are covered in 'Working from home – what employers should consider.'
Declining a request
If there are concerns about the request then the employer should meet with the employee as soon as possible. The meeting should be organised for a time, date and location convenient to both parties. There is no statutory right to be accompanied to this meeting, but it is good practice to allow an employee to bring a colleague of their choice to the meeting. (An employer’s flexible working policy may extend this companion to a trade union representative).
At the meeting, the application should be discussed, with the aim of trying to overcome any concerns with the request. If the particular working pattern requested cannot be accommodated, the parties should explore if there is a suitable alternative working arrangement. After this meeting the employer should write to the employee as soon as possible giving a decision on the application.
If the decision is agreed follow the process above. If the decision is to refuse the request, the reason for the rejection must be given and it would also be helpful for the employer to explain why the particular grounds apply. The employer may wish to allow employees to appeal against their decision, however this is not a legal requirement. Again, the employer’s own policy should outline if this is a right the employee has.
Refusing an application
Requests can be refused if the employees
concerned are ineligible to make a flexible working request (for example, if they do not have the requisite service or if they have made a previous request within the past 12 months).
In all other cases, an employer can only refuse an application on the following 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.
Technically a request can be refused if the employee has failed to make a request setting out all of the required information. However, in these cases the employee can submit an amended request (as the 12 month limit will not apply), so best practice would be to discuss with the employee what is missing from their request and give them an opportunity to correct it.
Trial periods
Employers can agree to try a flexible working pattern on a trial (or temporary) basis. If this is the case, the duration of any trial period should be clearly set out in writing and should be reviewed throughout the period. There should also be a decision made about whether the arrangement should become a permanent change before the trial period ends.
Failure to deal with requests
It is important that employers deal with flexible working requests reasonably and within the prescribed timescale. A failure to do so can result in the employee raising a claim to an Employment Tribunal. Employees have successfully brought constructive unfair dismissal claims where employers have failed to comply with time limits and/or have failed to give proper consideration to the employee's flexible working request.
An employee also has a right not to be subject to a detrimental treatment (for example, refusing to consider the employee for a promotion) for making a flexible working request.
If an employer dismisses an employee because they have made a flexible working request, this dismissal will be automatically unfair (and in such cases, there is no minimum service requirement in order for the employee to bring a Tribunal claim).
Further advice
Whilst there is the statutory right to make a flexible working request it is also advisable to have a policy to outline how these will be dealt within your organisation. This makes the process clear to all parties. It also allows the employer to be clear on whether an employee can be accompanied to meetings and if the right of appeal will be given.
I can assist you with an internal policy for your organisation.
If you have any questions about flexible working requests please contact me.