What is the Law on Flexible Working?
Under English law, an employee who meets certain criteria is allowed to request flexible working, and an employer has to reasonably consider the request. However, employers are under no obligation to grant flexible working.
If you are facing a flexible working issue with your employer get in touch with our Employment Solicitors for free initial legal advice.
Who Can Make a Request for Flexible Working?
A request under the legislation can only be made by an employee - someone who has a contract of employment with the employer. This includes fixed-term contracts, but excludes employee shareholders, agency workers, self-employed contractors and consultants.
The employee must have worked for the employer for at least 26 consecutive weeks (about 6 months) before making the request for flexible working. Only one request can be made in a 12-month period.
What Can Be Requested?
An employee can request a change to the:
- Hours they work
- Times when they are required to work
- Place of work (e.g. split between home and their usual place of employment).
The request for flexible working will automatically be seen as a request for a permanent change. If an employee only needs a temporary change, they should tell their employer how long the change is required for.
How Does an Employee Make a Request?
To be a valid statutory request, an employee’s request must:
- Be in writing and dated
- Say that it is a statutory request
- Set out the proposed change and when they want it to start
- Explain if they think the change will have a negative impact on the employer and, if so, suggest how to deal with this
- State whether they have made any previous requests to the employer and, if so, when.
An employee should include as much information as possible in the request to allow their employer to consider it properly. If an employer refuses the request for flexible working, they may be able to suggest alternatives which may help the employee.
What Employer’s Need to Consider When they Receive a Request?
When a request for flexible working is received, an employer must deal with it reasonably and notify the employee of their decision within three months of the date the request was made.
What is reasonable is not set out in the law, although Acas make recommendations on how an employer should deal with a flexible working request in a reasonable manner, which includes:
- Discussing the flexible working request with the employee
- Allow the employee to be accompanied to any meetings about the request (e.g. by a work colleague or trade union representative)
- Arrange appropriate venues for meetings (for both the employer and employee). If an employee misses the meeting the employer is entitled to treat the request as withdrawn.
An employer should fully consider the reasons for the flexible working request to avoid any possibility of discrimination, or dealing with the request unreasonably.
For example, an employee requests flexible working on her return from maternity leave, or a disabled employee makes the request due to their disability. If the employee quits as a result, the employer could face a Constructive Dismissal claim.
An employer can only refuse a statutory request for flexible working if they can show one (or more) of the following reasons in listed in the Employment Rights Act 1996:
- It will result in additional costs for the employer
- There will be a negative effect on meeting customer demand
- It wouldn’t be possible for them to reorganise work among existing staff, or recruit additional staff
- There would be a negative impact on quality or performance
- There wouldn’t be enough work for the employee for the periods of time the employee requests to work
- There are planned organisational changes.
When making their decision, an employer should consider the pros, cons, and costs of the request. The employer must, within three months of the request being made, write to the employee with their decision. This will be to either:
- Accept the request, and set out any compromises made during discussions with the employee; or
- Reject the request and provide reasons.
If the request for flexible working is accepted, the employer will vary the contract of employment to accommodate the changes.
What Happens if the Request is Rejected?
If the request for flexible working is rejected, the employer doesn’t have to allow an appeal from the employee. However, an appeal can help the employee understand the decision, or reveal anything the employer may have overlooked.
Within 3 months of receiving the decision, an employee can go to an Employment Tribunal if they aren’t satisfied their employer has dealt with the request reasonably.
The Employment Tribunal cannot question the business rationale of the employer, but can consider:
- Reviewing the procedure followed by the employer
- Whether the request was taken seriously
- Whether the decision was based on correct facts
- Whether the reason given falls within the permitted grounds.
If the Employment Tribunal finds the request for flexible working wasn’t dealt with reasonably, it can order the request to be reconsidered, and award compensation to the employee, to a maximum of 8 weeks’ pay.
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