Flexible working has never been more relevant than during, and after, the pandemic. Employers had to adapt quickly to enable people to work from home and now that employees have seen it can be done, many want to formalise more flexible work patterns. In a challenging environment for recruitment, employees will look to alternative employment if they are unable to secure the work-life balance they believe suits them best.
One way employees can do this is by making a formal flexible working request – but how should employers deal with these?
The right to request
There is a legal right to request flexible working where someone:
- is an employee;
- with 26 weeks’ service;
- and hasn’t made an application in the previous 12 months.
What does a request look like?
An eligible employee must make their request in writing, and it should set out:
- the date the application is made;
- a statement that it is a statutory request;
- details of the flexible work pattern or changes the employee wants, and when they want this to start;
- an explanation of how the change might affect the business, and how this could be dealt with;
- a statement saying if and when they have made a previous application.
Many employees will use a standard form available online, or from the employer, which covers these points.
What must an employer do?
Employers must consider the request in a reasonable manner and make a decision within three months (or longer if the employee agrees).
If the change is agreed, then the employee’s contract of employment should be updated to reflect this.
If the employer cannot agree to the change, it can only refuse the application if:
- it will cost the business too much;
- they cannot reorganise the work among other staff;
- they cannot recruit more staff;
- there will be a negative effect on quality;
- there will be a negative effect on the business’ ability to meet customer demand;
- there will be a negative effect on performance;
- there’s not enough work for the employee to do when they’ve requested to work; or
- there are planned changes to the business.
What is a “reasonable manner” in which to consider the request?
If an employer fails to consider the flexible working request in a “reasonable manner”, an employee can bring a claim in the Employment Tribunal.
There is an Acas Code of Practice on flexible working which sets out that employers should hold a meeting with the employee to discuss the request, and allow the employee to be accompanied at that meeting.
Employers should also consider having their own flexible working policy so that they have a clear process to handle requests fairly, can treat all requests in the same way, and can make it easy for employees to find out how to make a request.
When reaching a decision on requests, after the meeting with the employee, they should be informed in writing of the decision and given the right to appeal if the request has been turned down.
What are the risks of getting it wrong?
Employees can make a claim if they believe the request was not dealt with in a reasonable manner or in the three month timescale, but compensation for such claims is limited to eight weeks’ pay.
Employees may also bring claims where they believe the request was refused, or the requirement to work their current working pattern puts them at a disadvantage compared to other employees on grounds of one or more protected characteristics – such discrimination claims can be much more costly and therefore it is important to consider requests in light of other issues, such as childcare or a disability which may have prompted the request.
