Flexible Working – understanding your employer obligations

By September 25, 2019Legal Update, Top Tip
Flexible Working Request | HR Solutions

Modern working practices are moving toward the ever-increasing trend of flexible working. Major job search websites are reporting that key words linked to ‘flexibility’ are now common search criteria used by applicants. There have even been a number of government consultations that discuss the possibility of requiring employers to give more flexibility in the future, including the potential duty to advertise whether a job can be done flexibly.

As flexible approaches to working are set to become the norm, let’s brush up on the existing statutory right to request a change to working patterns.

The statutory right to a flexible working request

Organisations can choose to make arrangements that may enable their staff to work flexibly if they wish to, such as starting work earlier or later or working from home now and again.

Separately to this, employers should be aware that the Employment Rights Act gives those with ‘employee’ status the right to request a permanent change to their working pattern. This is often referred to as a ‘flexible working request’. The right allows eligible employees to ask for a change to:

  • The hours of work
  • The times when they are required to work
  • Where they work (business location or at home)

When someone can make a request

Employees have to be eligible to make a request. To be eligible, they must:

  • Have 26 week’s continuous employment
  • Have not made a previous request within the last 12 months

If they meet the above, then the employee must put the request in writing, including confirmation that: they are making a request to vary their contract, details of the changes they  wish to apply for and the date they would like this to be effective from and lastly, details of what effect (if any) this would have on the employer and how this could be dealt with.

If someone does not meet these criteria, they can still ask to make a request but they would not have the legal right.

What your duties are as an employer

There are some specific legal obligations on employers here. The key ones are:

Objectively consider the request – an employer has a legal duty to objectively consider an eligible flexible working request. So, employers may not simply just decide they don’t want to agree with a request.

Give an outcome – this must be either; to accept the request and establish a start date and any other details agreed, to confirm a compromise that was agreed between you at a meeting (this may include an arrangement for a trial period) or to reject the request setting out the statutory reasons that apply along with clear business reasons for this.

3-month time limit – every employer should know that the law gives them 3 months from receiving a written request to handle it, including any appeal that may come about. This can be extended, but only if the employee agrees to it, for example when a trial period is agreed.

Treat part-time people consistently with others – part-time workers are protected in law from being treated less favourably than full-time workers. Ensure that any pay and benefits etc that are linked to working hours are fairly ‘pro-rata’d’ when someone’s working hours are reduced and that other terms will apply equivalently.

Unlawful discrimination – employers must ensure that the handling of a flexible working request will not constitute unlawful discrimination. For example, women who make a request because of childcare needs are likely to be able to make a successful claim for sex discrimination if their employer refuses a request unreasonably. Also, see ‘reasonable adjustments’ below.

How you should handle a request

It is important to recognise when an employee is making a flexible working request and to advise them of the need to put it in writing if they are not already aware that this is required.

There used to be specific deadlines for certain stages of handling a flexible working request. However, these laws were relaxed a few years ago making the process much more…flexible!

Requests should be responded to promptly, and this is particularly important if there may be a need to have an appeal, so as to ensure the time limit is not exceeded.

In short, most processes will entail:

  1. Receiving a written flexible working request
  2. An invitation letter to a flexible working meeting
  3. A flexible working meeting
  4. (A trial period if appropriate)
  5. An outcome letter
  6. An appeal (if the request was denied)

The procedure for handling a request can feel formal and this can sometimes be interpreted negatively, so it is worth giving a heads up that there will be letters and meetings involved in handling the request and that this is all part of meeting your legal obligations to your employee.

Before starting out, employers should familiarise themselves with the Acas code of practice. (Hopefully, it will never come to it, but legal proceedings to consider whether or not this code has been followed!) The code does advise on the process and makes important recommendations, such as advising that an employee should be given the option to be accompanied at a flexible working meeting. Additionally, if your organisation has a policy for flexible working requests, then this should be followed too.

If you think you can agree to a request outright and there is no need to have a meeting etc, then you can go ahead and confirm the new working pattern. But, to be consistent in your approach (with any previous or future requests you may receive from others), it may be worth going through the motions.

Right to refuse a request

Be aware that there are eight statutory reasons under which a flexible working request can be refused. The organisation must have a legitimate business reason which fits at least one of these.  The statutory reasons are:

  • The burden of additional costs
  • An inability to reorganise work amongst existing staff
  • An inability to recruit additional staff
  • A detrimental impact on quality
  • A detrimental impact on performance
  • Detrimental effect on ability to meet customer demand
  • Insufficient work for the periods the employee proposes to work
  • A planned structural change to your business

If you are writing to refuse a request, you should detail in the outcome letter what the specific details of the situation are and how they relate to the statutory reason that applies.

On another note, if an employee should unreasonably fail to attend both a meeting to discuss their flexible working request and a rearranged meeting, then you can conclude that they have withdrawn their request. You must inform the employee of this decision and we would advise this is confirmed in writing.

Temporary changes and reasonable adjustments

Requests for a temporary change to working patterns are not subject to the rules for the statutory right, and so employers are free to agree or to decline a request for a temporary change as may be appropriate. To be on the safe side, it is still worth following the same process as you would for a permanent change so that everyone is treated consistently.

Remember that employers have a duty to make reasonable adjustments to support their members of staff who have a disability. This can include changes to the hours of work, when they are required and where they work, and this is separate to the right to request flexible working.

Detriment

As with all statutory employment rights, if an employee makes a flexible working request then they must not be treated any less favourably for having done so.

Further HR Guidance

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