The Right to Request Flexible Working

Flexible working is a way of working that suits an employee’s needs. A request could be for reduced days, staggered hours, home working, flexitime or even job sharing. There is a particular process which should be followed in order to make a formal flexible working request.

Who can make the request?

• A statutory request can only be made by an employee;
• The employee must have 26 weeks ‘continuous employment at the date the request is made;
• Only one request may be made under the statutory scheme in any 12 month period; and
• Requests cannot be made by agency workers.

An employee should ensure that their application meets the following requirements:-

• Is in writing;
• Dated;
• States that it is an application made under the statutory procedure;
• Specifies the change that the employee is seeking and when they wish the change to take effect;
• Explains what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with;
• States whether the employee has previously made an application to the employer and, if so, when; and
• Sets out if they are making their request in relation to the Equality Act 2010 e.g. as a reasonable adjustment.

How an Application is dealt with

On receipt of an application, the employer is obliged to deal with that request in a reasonable manner and to notify the employee of its decision within the decision period (3 months). This will initially involve the employer meeting the employee to discuss the request, unless the employer is able to accept the request without a meeting. Although it is not a statutory requirement, it would be good practice to allow the employee to be accompanied at a meeting by a work colleague or trade union representative. Further to that meeting, the employer may:-

• Accept the request;
• Propose an alternative form of flexible working; or
• Reject it with business reasons (subject to a right of appeal).

Business Grounds for refusing a request – section 80G(1) Employment Rights Act, 1996.

The below list sets out the legitimate business reasons for refusing a flexible working request.

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality
• Detrimental impact on performance;
• Insufficient work for the periods the employee proposes to work;
• Planned structural changes to the business.

Appeal

Following a decision, the employee should be given the right to appeal and informed when they need to appeal (normally within 5 working days of the decision) and to whom the appeal should be sent. An appeal hearing should be heard by someone impartial.

Trial Period

Legislation does not provide for or regulate trial periods. However, by way of good practice, it would be advantageous to consider a trial period rather than reject a request altogether. A trial period would be particularly useful where the employer is unsure as to whether the proposed arrangements can be worked with or if they are uncertain about the possible impact on other employees’ requests for flexible working.

Having a trial period would include review meetings which would give the parties the opportunity to discuss how the new arrangements are working and make any necessary adjustments.

If you require advice on flexible working,  please contact a member of the Chattertons Employment Team.