Expand the lists below to see the breadth and depth of content available:
(Already a customer? Click here to access these documents)
Since 30 June 2014, all employees with at least 26 weeks’ service have the right to request flexible working. Employers are not obliged to agree to such requests, but must consider requests in a reasonable manner, and notify employees of the outcome within three months (to include any appeal). This period can be extended by agreement. The right is set out in sections 80F to 80I of the Employment Rights Act 1996.
Claims can be brought by employees if a reasonable process has not be followed within the timescale although compensation for such claims is limited. More concerning is the potential for claims for discrimination and/or constructive dismissal if an employee considers that the refusal of their request was discriminatory. See Managing Flexible Working Requests [FS9.02] for more information.
There is an ACAS Code of Practice – Handling in a reasonable manner requests to work flexibly, which must be considered by Tribunals when deciding whether an employer has acted reasonably in handling a request. There is also guidance set out in ‘The right to request flexible working: An ACAS Guide’.
To make a request for flexible working under the statutory scheme, the employee must have at least 26 weeks’ continuous service at the date the application is made, and have not made another application to work flexibly in the last 12 months.
The right is not open to anyone who is not an employee, e.g. agency workers or the self-employed.
The application must be in writing and state the following:
The employee must make the application in sufficient time to allow the employer to consider the request before the anticipated start date.
The employee can request variations to their hours, days or times of work, or their place of work. This covers patterns such as flexi-time, part-time working, annualised hours, home working, job sharing, shift working, compressed hours and term-time only working.
The process (including any appeal) must be completed within a three month period starting with the date of the request.
The eight grounds on which a request can be refused are:
There is no requirement to provide any further detail to the employee as to why the particular ground applies. However, the ACAS guidance recommends that employers consider whether a more detailed explanation would be beneficial to the employee. In addition, it may be wise to provide more information about the business reasons for the refusal where there is the possibility of a discrimination claim, such as for indirect sex discrimination or disability discrimination.
An employee may present a claim to the Employment Tribunal if they believe that the correct procedure was not followed. If the employee is successful in their claim, the Tribunal can order a reconsideration of the application and/or award compensation of up to eight weeks’ pay (capped at the statutory limit on a week’s pay).
However, the right to request flexible working is in addition to other employment law legislation, such as the discrimination provisions in the Equality Act 2010. It is possible that employees who are unhappy about the outcome of their flexible working request may also have other avenues to make a claim against the employer, such as a claim for indirect sex discrimination from an employee returning from maternity leave. Other potential claims include disability discrimination or discrimination because of religious belief. It is also important to bear in mind that if an employee is disabled within the meaning of the Equality Act 2010, there may be a duty to make reasonable adjustments which would apply irrespective of whether or not the employee has submitted a request for flexible working. Discrimination claims can provide a far more substantive remedy for employees as compensation is potentially unlimited, but depends on financial losses and an award for injury to feelings.
This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures. If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist. ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.