Flexible Working Requests

Any employee can ask to work flexibly. If they do, the employer should consider whether they can accommodate the request. If they don’t look into it, they may risk inadvertently discriminating against the employee and expose themselves to a claim from them.

If an employee has been employed for 26 weeks or more then they have a statutory right to make a request to work flexibly.  In this situation the employer needs to follow a set procedure so as not to fall foul of the law.

1. Check how long the employee has worked for them.

The first thing an employer should do is check how long the requesting employee has been with them.  If the employee has worked for their employer for less than 6 months, the employer gets to choose how they will deal with the request, as long as they act reasonably.  But, if the employee has worked for the employer for longer than that, the employee has a statutory right to make a request.  In this case, the employer must follow a fair process when considering the application, and complete its deliberations within three months from the application being made.   

2. Check that you have made your request in the right way.

Your application must:

• Be in writing.
• Be dated.
• State that it is an application made under the statutory procedure.
• Set out the change that you are seeking and when you wish the change to take effect.
• Explain what effect, if any, they think the change would have on you employer’s business and how any such effect could be dealt with.
• State whether you have previously made an application to your employer and, if so, when.

3. Deal with the request in a reasonable manner

The employer needs to deal with any properly made request in a reasonable manner and notify the employee of their decision within three months of the date of their application (or longer period if both the employer and employee agree to it). ACAS has produced a code on how to handle a request, and it suggests that the employer should do the following as part of dealing with any request in a reasonable manner:

• The employer should arrange a meeting to talk with their employee as soon as possible after receiving their written request (unless they intend to approve the request, in which case the employer won’t be necessary to meet with the employee).
• The employer should allow their employee to be accompanied by a work colleague at any meeting where they give them a decision, including any appeal decision. The employer should let the employee know about this beforehand.
• At the meeting(s) with the employee, the employer should discuss the employee’s request as this will enable the employer to get a better idea of the changes the employee is looking for and how those changes might benefit both the employer and the employee. Where possible these meeting(s) should take place in a private place where both parties can’t be overheard.
• The employer should consider the request carefully, looking at the benefits of the requested changes for the employee and for the employer’s business and weighing these against any adverse business impact of implementing them. In doing so the employer must be careful not to discriminate against the employee.
• Once the employer has made its decision the employer must let the employee know the outcome in writing as soon as they can.
• If the employer accepts the request, or they do so with modifications, they should discuss with the employee how and when the changes might best be implemented.
• The employer can only refuse the request for one or more of the reasons set out below. If the employer does refuse their employee’s request, then, the employer should allow them to appeal the decision.
• The employer must consider the request (and any appeal), make its decision and write to their employee to let them know the outcome within three months of the date they receive the request.
• If the employee fails to attend a meeting (including an appeal) and a rearranged meeting without a good reason, the employer can treat the request as withdrawn. If the employer treats the request as withdrawn, they must let the employee know in writing.

4. Implementing the request

If the employer accepts the request, they should discuss and agree with the employee the best date to start the new arrangements.  They can also discuss and agree to have a trial period if they wish.  This will give both the employer and the employee a chance to see whether the arrangements work.

At the end of any trial period, or immediately the new arrangements start if the employer doesn’t use a trial period, the employee’s contract will change permanently, and they can’t change it back unless the employer agrees.

There are eight business reasons that allow an employer to reject a flexible working request.  These are where:

• The requested arrangements will increase the business’ costs
• The requested arrangements will affect the business’ ability to meet customer demands
• The employer can’t reorganise work among existing staff
• The employer won’t be able to recruit more staff
• The requested arrangements will affect the quality of the business
• The requested arrangements will affect the performance of the business
• There isn’t enough work at the times when the employee wants to work
• The employer is planning to change the structure of your business

The employer should be able to back up their decision with evidence and, ideally, this needs to be more than just anecdotal.