Right To Request Flexible Working
The Flexible Working Regulations 2014 came into force on 30th June 2014 and extend the right to request flexible working to any employee who has been employed for 26 weeks and not just parents of children under 17, or 18 if disabled, and certain carers – as was previously the case. Consultation began in September 2021 to seek views as to whether the right should become a day one right.
Updated: 28 September 2021
Right To Request Flexible Working Pre 2014
The right to request flexible working was introduced in 2003 and the legislation was aimed at employees with childcare responsibilities. In April 2007 the Work and Families Bill extended the right to carers of adults i.e. anyone over 16 years of age.
From 30 June 2014 any employee with 26 weeks’ continuous service has a right to request flexible working.
The requested change must relate to:
- the number of hours that the employee works;
- the times that the employees works; or
- the employee’s place of work (as between the normal workplace and the employee’s home).
Employees continue to be limited to making one written request in each 12 month period. Pre 2014 claims were generally related to sex discrimination. However the widening of the reasons for requesting flexible working also opens up the possibility of claims under other protected characteristics. For example failure to consider a request from a disabled employee could equate to a failure to make reasonable adjustments; or refusing a request for time off for prayer could be discrimination on the grounds of religion or belief. Constructive dismissal claims are also a possibility.
This stringent statutory procedure with specific time-frames for each step has been replaced by a much more simplified approach. Under the new procedure employers must deal with the application in a “reasonable manner” and your decision must be communicated within three months of receiving the written request. In business three months is not a long time, particularly over the summer months when decision makers may be on holiday, so it is wise to keep a timetable. And remember it is always an option to extend the period, but both parties must agree to it.
Employers retain the right to reject flexible working requests in the same way as they did previously, relying on one or more of the eight, very wide, statutory business reasons for refusal. A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks’ pay, the cap that applies from 1 April 2019 is £525 per week.
The ACAS Code
The ACAS Code recommends that employers should:
- talk to an employee as soon as possible after receiving a written request, unless the request will be approved;
- allow employees to be accompanied at any discussion;
- consider the request carefully;
- inform the employee as soon as possible in writing of any decision; and
- discuss how and when the changes might best be implemented or allow an appeal.
What Changes Might An Employee Request?
An eligible employee may lodge a formal request to:
- Reduce their working hours from full time to part time.
- Enter into a job-share arrangement.
- Work on different days of the week.
- Be exempted from working on a particular day of the week.
- Be exempted from shift working.
- Move from night-shift to day-shift working.
- Be exempted from overtime working.
- Start earlier or later and finish earlier or later.
- Work the same number of hours but spread over fewer days.
- Have every second Friday off.
- Work during school terms only.
- Perform some or all work from home.
- Work part-time hours spread over five days.
- Work full-time hours over different times.
Refusing A Request For Flexible Working
Although the statutory procedure to be followed was relaxed in 2014, the prescribed business grounds for refusal stayed the same. They are:-
- The burden of additional costs;
- A detrimental effect on ability to meet customer demand;
- An inability to reorganise work among existing staff;
- An inability to recruit additional staff;
- A detrimental impact on quality;
- A detrimental impact on performance;
- Insufficient work during the periods the employee proposes to work; and
- Planned structural changes to your business.
Dealing With Appeals
There is no statutory right to an appeal. However, an employer would likely struggle to persuade an employment tribunal that it had handled the application in a “reasonable manner” if one was not offered.
Document Document Document
No matter what happens, keep good records of the process you have followed. If things don’t go well and you end up in a tribunal nothing tops comprehensive notes that show the procedures that were followed, the timings of events and the reasons for decisions.
Under the Flexible Working Regulations employees may complain to an employment tribunal if the employer:-
- Did not handle the request in a “reasonable manner”;
- Wrongly treated the employee’s application as withdrawn;
- Dismissed or treated an employee poorly because of their flexible working request; or
- Rejected an application based on incorrect facts.
- Don’t ignore requests from employees with less than 26 weeks service. Whilst you won’t have to comply with the statutory procedure the employee making the request may have other relevant employment protections so all requests should be considered and responded to.
- When refusing a request you must specify which of the statutory reasons applies, I recommend supporting this with an explanation.
- Be vigilant over the that three month time scale, the whole process including any appeal should not exceed the three months unless an extension is mutually agreed.
- If faced with competing requests be careful not to discriminate against either employee.
- When considering a request I always recommend having a trial period before you make the change permanent. In some cases you may simply not know whether or not a suggested working pattern can be accommodated. A trial period will give both parties the opportunity to identify any issues and to see if they can be resolved and if you are sceptical about whether a flexible working arrangement will work then the trial period may provide substantive evidence of this. A trial period may well require both parties to agree an extension to the statutory time frame of three months.
- Don’t worry about setting a precedent. Each flexible working request should be considered individually. It is quite possible that the consequence of granting one request is that a subsequent request by a colleague may not be able to be accommodated. The reasons why a request may or may not be able to be granted will likely differ even when made by employees working in the same department.
- Remember the changes are permanent. It should be made clear to the employee that (in the absence of an agreed trial period) the changes made to their contract are permanent. While an employee could make a further flexible working request after 12 months there is no guarantee that it would be successful so employees need to think about the long term impact.
- Where an employee fails to attend a meeting and a subsequent rearranged meeting without good reason you may consider the request as withdrawn.
- Always confirm contractual changes in writing, even temporary changes.
The Department for Business, Energy & Industrial Strategy (BEIS) launched a consultation on 23 September 2021 seeking views on whether the right should be extended to all employees, from commencement of employment. The consultation will run until 1 December 2021 and seeks comment on a number of measures the Government are proposing to implement. These include:
- Whether limiting requests to one per year should continue;
- Whether the current 3-month period an employer has to consider any request should be reduced;
- Whether before refusing a request, an employer should be obliged to consider alternatives to the pattern requested; and
- Whether all of the eight business reasons for which an employer can refuse a request are still appropriate, or whether some should no longer be considered valid reasons for refusal.
Whilst the implementation of these changes in law would only take place after the consultation concludes, the Conservatives had promised in their manifesto that they would make the right to request flexible working a day one right. Therefore, whether the other aspects of the consultation will be implemented is yet to be seen, but it seems very likely that this primary proposal will be implemented.
The consultation closes on 1 December 2021.
Invitation to Meeting to Discuss Request for Flexible Working
My invitation to meeting is designed to notify the employee that their request has been received and that a meeting will be set up to discuss their proposal.
While the legislation does not require a meeting to take place, the “ACAS code of practice on handling in a reasonable manner requests to work flexibly” suggests meeting with the employee in certain circumstances. There is no legal right to be accompanied at a meeting to discuss a flexible working request, but it would be good practice to do so.
When inviting the employee to a flexible working meeting, bear in mind the need to complete the process within the three month time frame.
The template is provided in Microsoft Word format so you can adapt the content to suit your requirements.