who can request flexible working?

The right to request flexible working is a right extended to all employees who have been employed for at least 26 weeks.

Flexible working is used in all manner of circumstances.

Common scenarios include:

  • Employees returning from maternity leave;
  • Requests to a reduction in hours to accommodate childcare needs.

Childcare is not a pre-requisite of a flexible working request.

Employers should be aware that an employee can submit a request to change their working pattern for all manner of reasons.

For example, an employee could request to no longer work on a Monday so they can play Golf. Regardless of the reasoning or whether the employer considers this to be an acceptable reason, this request would need to be dealt with through the required process and to reject this an employer would require a fair reason to do so.

Employers - What to look out for?

Does the employee have at more then 26 weeks of continuous service?

To legally request a change to their working pattern under the flexible working rules, an employee must have been employed continuously for at least 26 weeks.

Employees can be limited to one request every 12 months.

Flexible Working Policy

It is best practice for employers to ensure they have a Flexible Working Policy within their Employee Handbook.

This should explain how to make a flexible working request and any other details specific to the company.

The Request

Often a flexible working request will take the form of an email/letter to the employer, but employees can be asked to complete the formal request form, which can be accessed from the Gov.uk website.

If this is required, it is best practice to download and send this form to the employee for completion.

The benefit for employers of having such form completed is that it asks them to explain how they believe this change may impact their employer, and how they think this impact can be managed.

The Meeting

Once a request is submitted, a meeting should be scheduled to discuss the request.

The employee should be given a written invite to such meeting, giving them the right to be accompanied.

The meeting will be used to discuss the employee’s request in more detail.

For example, if the employer has initial concerns with how the business would cope with agreeing to the employee’s request, this should be put to them for their response.

The employee may raise points which would need to be considered in line with the process.

Accepting the Request

Upon receipt of such a request, if an employer is happy to accommodate the request having reviewed this, there is no legal requirement to hold a meeting.

Instead, this could simply be communicated to the employee as accepted and confirmed in writing as an agreed change to their terms and conditions of employment, stating the date the change takes effect.

It should be made clear to an employee that once accepted this would represent a permanent change, and should their circumstances change in the future, there is no guarantee that this could revert to their previous working pattern.

Of course, an employee could submit a further request at a later date, but this would need to be considered at that time.

Compromising 

An employee may make a request which an employer could justify rejecting.

However, a discussion about such a request may lead to a compromise.

An example could be your employee asks to reduce their working week by one day.

The employer may not be able to recruit someone for one day a week, but may have applicants for two days a week.

Therefore the request may be agreed with the employee, if they compromise for a reduction of two days a week.

Similarly, an employee may request a specific day each week to no longer work, and if this doesn’t work for the employer, a different day which could work may be suggested as an alternative.

The employee may not agree to this, but discussing alternatives and potential compromises would assist in showing that an employer has acted reasonably in considering the request.

Fair Reasoning to Reject a Flexible Working Request

Employers can reject a flexible working request.

However, this must fall into one of the set categories, considered as a legally fair basis to reject such a request.

These are:

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there is a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

An important point to note is that each flexible working request should be assessed on the facts and circumstances at the time of the request.

For example, if two employees make exactly the same request, one at the start of the year and one later on that same year, there would be scope to reject the second employee’s request, even if the first employee’s request had been accepted.

But only if one of the above rejection reasons have been established, such as the business being in a completely different situation as it was when the previous request was granted and therefore some of the above reasoning is now relevant which was not a concern previously.

A common misconception by employers is to take the approach that they cannot agree to such a request as it will encourage others to make similar requests.

This would not be fair reasoning to reject an employee’s request.

The correct process here would be to consider this request, if it can be agreed, it should be, and if similar request from other employees follow, these should each be individually assessed and accepted/rejected as appropriate.

Remember that accepting one request does not mean employers have to accept all future requests, so long as a fair rejection reason is evidenced.

Employers should bear in mind their rationale relied upon to reject a similar request.

This should be reasonable and backed up by evidence.

If not, an employee could suggest they are being treated less favourably compared to another employee, and this could result in grievances.

Or if this can be linked to a relevant protected characteristic, could result in complaints of discrimination.

Trial Periods

If an employer is minded to agree to a request but is wary that this may not work, or may cause issues for the business which cannot be known for certain until this new working pattern/arrangements are tested in practice, a trial period can be agreed.

The employee would work to the new requested working pattern/arrangements, and this would then be assessed again at the end of the specified trial period.

The trial period should be a reasonable time-frame to allow for an assessment of the new working arrangements, and if at the end of this, the employer considers this to have been unsuccessful, this will need to be able to be explained to the employee and evidenced as to why this failed.

Alternatively, if this was considered a success, the arrangements can be confirmed as a permanent change in writing.

Appeal

As part of a fair process, an employee should be given the right of appeal.

Obviously, this will only be relevant in instances where the employee’s request is rejected, or at a point where a trial period is deemed unsuccessful by the employer.

Like any appeal, this is not a complete re-run of the previous meeting, and the employee would need to formulate some specific points they wish to appeal on.

For example, if an employee’s request was rejected on the basis that the employer cannot find an applicant to fill the position but have not advertised for the same, then a valid point of appeal would be that the employer has not advertised this position, and is simply assuming that they would not be able to find applicants for that.

The Risk

The failure to hear a flexible working request, subject to the circumstances, could in a worst-case scenario result in an employee resigning in response to this citing a breach of mutual trust and confidence.

This could lead to a constructive dismissal claim if they have over two years’ service.

Further, a dismissal stemming from flexible working request arrangements would entitle an employee to bring an automatic unfair dismissal claim, for which there is no qualifying service period.

Therefore, employers should take care when dealing with such requests, and ensure a fair process is followed, and if rejected ensure this is done so on fair grounds.

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About the author 

Steven McMullin

Steve is a qualified Employment Lawyer at Neathouse Partners. Day to day, Steve deals with client queries covering a broad spectrum of HR and employment-related issues, with a particular specialism in TUPE. Outside of the office, Steve is a big Everton FC fan, as well as having a keen interest in music. Feel free to add Steve on Linkedin.

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