When Can You Refuse A Flexible Working Request?

Whether you’ve had requests already or just want to be prepared for a future conversation on the topic, it’s important for both you and your employees that you understand the law surrounding flexible working requests made under the Employment Rights Act 1996.

It may feel hard to refuse a flexible working request, especially if has been made for reasons such as childcare or to allow an employee to do something that is very important to them, however, there are a number of legitimate reasons that you can refuse them.

Business owners can refuse a flexible working request when:

• The employee does not have 26 weeks’ service at the point of making the request,
• the employee has already made a formal flexible working request within the last 12 months,
• the requested arrangement would hurt the business, such as increased costs or decreased productivity.

The law requires that all requests, including any appeals, must be considered and decided on within a period of three months from the first receipt unless you agree to extend this period with the employee.

Read on for more information about flexible working requests and how they should be managed in line with best practice HR guidance and employment law to prevent grievances being raised.

What Is A Flexible Working Request?

A flexible working request is a request from an employee to change their working hours, patterns or location.

The right to make a flexible working request is set out in law, and all employees with at least 26 weeks’ continuous service have the right to make one request per year.

There are a number of different types of changes that can be requested under the flexible working arrangement, including:

• Working from home
• Part-time work
• Job sharing
• Flexible start and finish times
• Compressed hours (working the same number of hours over fewer days)
• Staggered hours (for example, to avoid rush hour traffic)
• Annualised hours (agreeing a set number of hours to be worked over the year

A request from an employee made under the Employment Rights Act 1996 must be received in writing and must include the following information:

• the date of their application, the change to working conditions they are seeking and when they would like the change to come into effect
• what effect, if any, they think the requested change would have on you as the employer and how, in their opinion, any such effect might be dealt with
• a statement that this is a statutory request and if and when they have made a previous application for flexible working

When Can You Refuse A Flexible Working Request?

Business owners can refuse a flexible working request when there is a genuine business reason such as;

• additional costs incurred would be prohibitive,
• being unable to reorganise work amongst existing staff,
• being unable to recruit additional staff,
• there would be a negative impact on quality or work or performance,
• customer demand could no longer be met,
• structural changes to the business,
• or there not being enough work available.

Requests can also be refused if:

• the employee has already made a similar request within the last 12 months,
• if you have a good reason that is not discriminatory. For example, you may refuse a request if it would create a health and safety risk.

What Employers Need To Know

When considering a flexible working request, employers should bear in mind that:

• Every employee has the statutory right to ask to work flexibly after 26 weeks' employment service.
• An employee can only make a statutory request once in any 12-month period.
• The law requires employers to consider all requests in a reasonable manner
• You should make clear to your employees what information they need to include in a written request to work flexibly. Consider sharing a flexible working policy
• All employees have the right to make a request, not just parents or carers
• Requests can be for a change to hours, patterns or location of work
• Requests must be made in writing and should include the date of the request, the proposed change and the date from which the change would take effect
• Employers must respond to requests within 14 days, and must give their decision in writing
• If an employer refuses a request, they identify one of the statutory reasons for doing so, which must be communicated to the employee
• The right to request flexible working does not entitle an employee to make multiple requests, or to be guaranteed that their request will be accepted
• Unless the employee agrees, all requests must be decided upon within a three-month period from when it was first received.
• If the employee arranges a meeting to discuss their application and appeal but fails to attend, you can consider the request withdrawn. If you choose to do this, you must inform the employee ahead of time.

What Are The Implications Of Refusing A Request?

If you simply refuse to deal with a flexible working request, or if you fail to deal with the request in a “reasonable manner” the employee can complain to an Employment Tribunal. The same principle applies if you punish the employee for making a request, for example, by refusing to give them a pay rise because of the request.

In some cases, an employee may also be able to claim sex discrimination if their request is denied. This is because women are more likely to request flexible working arrangements to care for children or other dependents. An example may be where you permit a man to work flexible but refuse the same request for a woman, without good reason.

Employers should therefore handle flexible working requests carefully and ensure they have a legitimate business reason for refusal if they are unable to grant the request.

How To Handle A Flexible Working Request

If you have received a flexible working request from an employee, you should first check whether the request is eligible. The request must:

• Be in writing
• Include the date of the request
• State the proposed change and the date from which the change would take effect

If the request is eligible, you should arrange a meeting with the employee to discuss their proposal. You should also consider whether the request can be granted without causing detriment to the business.

In many cases, if the request is not practical, it is worth trying to find some sort of compromise that may suit you both.

Best Practice To Follow

To ensure that you handle flexible working requests in the best possible way, please familiarise yourself with the  guidance notes on this topic produced by ACAS.

It covers everything you need to know from a legal perspective and as well as outlining what you should do to maintain good employment practice.

Next Steps

If you have any further questions about flexible working requests or would like advice on handling a request that has been made, Neathouse Partners can help.

The team can help you manage and understand all aspects of HR and employer topics so that you can keep your workforce productive and happy.