What’s meant by flexible working?
This is where employees work in a way that best fits their needs. This could include:
- A change to their hours of work
- Work during term time only
- An increase in their holiday entitlement
- A change to their place of work, either for all or part of the week
- Part-time working
- Compressed hours
- Job share
Who can request flexible working?
The Employment Relations (Flexible Working) Act 2023 says that all employees have the right to ask for flexible working from the first day of their employment. They can make a maximum of two requests within a twelve-month period and the employer has to respond to the request within two months.
When making their request, the employee doesn’t have to set out what effect the flexible working arrangement would have on the organisation, nor how that effect might be managed.
How to request flexible working
Although there is nothing in law concerning the process for flexible working requests, our employment law experts have drawn up a process that covers all the requirements an employer must attend to.
The request
Employees can make up to two flexible working requests in any 12-month period, provided that at the time of making their request, the final outcome of any other flexible working request they may have made is not still pending.
Discussing the request
You must give serious consideration to all flexible working requests with the aim of accommodating them, if possible. A meeting should be arranged to discuss the request within a reasonable time frame – twenty-one days is often suggested – of it being submitted.
You should ensure you:
- give the employee reasonable notice of the meeting
- confirm the meeting time and place
- identify which issues you want to discuss
- explain what will happen after the meeting
- inform the employee they can bring a companion (see below)
The meeting should:
- carefully consider the employee’s request
- weigh the potential benefits of the request against any adverse effect of the changes
- how the flexible working request might be accommodated, or
- alternative options
It’s good practice to allow the employee to be accompanied to the meeting by a work colleague or trade union representative, if the employee wishes.
If the employee or their companion can’t attend the meeting, they can propose an alternative date up to 5 days after that of the original meeting.
As an employer, you should keep a written record of the meeting. It should be accurate and reflect what was discussed.
It’s good practice to share this with the employee to avoid any misunderstandings about what you discussed and agreed.
If you share a record of the meeting, you should remove any sensitive information to follow data protection law.
The decision
This should be made within two months of the request. If the decision is that the flexible working request is accepted, you should write to the employee, outlining their new working pattern, confirming the start date and explaining that the new arrangement is permanent, unless it has been agreed otherwise.
If the answer is no
There may be occasions on which you can’t grant a flexible working request. If this is the case, you need to be able to show that you have consulted with the employee and explored all possible alternatives.
The refusal should be communicated to the employee in writing and the letter should set out:
- the business reasons you have for not accepting the request and a sufficient explanation as to why these reasons apply (see below)
- an additional flexible working request can be made within 12 months (provided only one has been made previously within this period)
- the means by which the employee can exercise their right to appeal
When can an employer refuse a request for flexible working?
There are a number of business reasons that can be used to justify a refusal of a flexible working request. They are:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to re-organise work among existing staff;
- inability to recruit additional staff;
- detrimental effect on quality;
- detrimental effect on performance;
- insufficiency of work during the periods the employee proposes to work; and/or
- planned structural changes
The right to appeal
The employee should be given the right to appeal the decision. The appeal should be made in writing and should be heard and reviewed within a reasonable time frame – ideally, within five working days from the receipt of the appeal.
The employee should be informed of the outcome in writing within two months from the date of the original request or within a reasonable timeframe.
Discrimination
You should be aware that a refusal to grant an employee’s flexible working request may possibly lead to an employment tribunal claim for discrimination. This will all depend on the employee and any protected characteristics they may have.
You can, however, advance the defence that the decision was a proportionate means of achieving a legitimate aim.
Care should be taken if the employee has a disability, and part of the purpose of their flexible working request is to ask for an adjustment to the way they work in order to alleviate any disadvantages they may suffer in the course of their work as a result of their disability.
How can we help?
A flexible working policy can set out a clear procedure for both the employee and employer and set out how the employee should make their application. rradar’s expert legal advisors and solicitors have experience in drafting such policies and would be happy to guide you through the process and ensure your business is safe and compliant.