Flexible working is a change to an employee’s work pattern: namely, changes to their hours, their place of work, or the times they are required to work. The scope of the legislation means almost all changes to working patterns can be requested under the regime.
All eligible employees have the right to request flexible working; it is not a right to be given flexible working.
There is no longer a prescribed statutory process for handling these requests; instead there is a general duty to deal with them in a reasonable manner.
If an application for flexible working is accepted it is a binding variation to the employee’s contract. That means that both employer and employee have to abide by it permanently, unless they subsequently agree otherwise.
Applicants must be employees (not a worker only) with at least 26 weeks’ continuous employment. Applicants can make only one statutory request in any 12 month period.
The application process
An employee’s application must be in writing, and must include: the date of the application; the change sought; the date from which the employee wants the change to be effective; the effect (if any) which the employee thinks the requested change would have on the employer and how any such effect might be dealt with; and a statement that the request is a statutory request.
The statutory requirement is for employers to consider requests ‘in a reasonable manner’, and to be considered and decided on within three months of receiving the application. What this means is more fully set out in the ACAS code and accompanying guidance.
Normally, dealing with a request in a reasonable manner will require:
- the employer to meet with the employee to discuss the changes they are looking for and the benefits to both the employee and employer;
- the employee to be allowed to be accompanied at that meeting by a colleague;
- the employer notifying the employee of the decision (in writing), with a right to appeal.
Refusal of a flexible working request
There are eight permissible reasons for an employer to refuse a request for flexible working:
- the burden of additional costs;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- detrimental impact on ability to meet customer demand;
- insufficient work for the periods that the employee proposed to work; and
- planned structural change to the business.
Employees can complain to an Employment Tribunal if their employer:
- fails to deal with their application in a reasonable manner;
- fails to notify them of the decision on their application within the decision period (three months);
- fails to rely on one of the statutory grounds when refusing their application;
- bases its decision on incorrect facts; or
- treats the application as withdrawn when they were not entitled to do so.
Posted on 30/07/2018 in Legal UpdatesBack to Knowledge