Flexible Working Overview

1. Right to Request Flexible Working

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’.  

2. Eligibility

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.

3. The Application

The application must be in writing and state the following:

• that it is being made under the statutory right to make a flexible working request;
• the date of the application;
• the details of the working pattern requested;
• an explanation of what effect, if any, the proposed change may have on the employer’s business and how the employee thinks this could be addressed;
• the date on which the change is to start; and
• the date on which any previous application by the employee was made.

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.

4. The Procedure

The process (including any appeal) must be completed within a three month period starting with the date of the request.

• Once a request is received, the employer must consider it in a reasonable manner.
• If the request is accepted immediately, there is no need for a meeting – the employee can be informed in writing of the acceptance.
• Otherwise, the employer should arrange to meet with the employee to discuss the request as soon as possible.
• The employee should be allowed the right to be accompanied at the meeting. See The Statutory Right to be Accompanied [FS5.03] for further information on this right. See also the template Guide to the Role of the Companion [TP5.01].
• If the employee does not attend the meeting or a subsequently rearranged meeting without a reason, the employer can treat the request as withdrawn, and must inform the employee of this.
• The employer should carefully consider the request and assess the benefits and any adverse business impact.
• If the request is accepted, this should be confirmed in writing as soon as possible, and the employee issued with an amended statement of terms or a revised contract of employment. The acceptance constitutes a permanent change to the employee’s terms and conditions of employment. Alternatively, a trial period can be agreed.
• If the request is refused, the employer must notify the employee in writing and rely on one or more of eight statutory reasons for the refusal. The employee must be offered the right of appeal.
• If the employee appeals the decision, an appeal hearing should be arranged. The appeal should be heard by a different manager to the person who considered the initial request. Again, the employee should be allowed the right to be accompanied at the appeal hearing.
• The appeal decision should be notified to the employee in writing. If the appeal is refused, the employer would need to rely again on one or more of the eight statutory grounds for refusal.
• The employee cannot make another request to the same employer for 12 months.

5. Grounds for Refusal

The eight grounds on which a request can be refused are:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work amongst existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the period when the employee proposes to work.
• Planned structural changes.

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.  

6. If the employee is dissatisfied with the outcome

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.