Flexible working at work – a quick guide
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This practical guide outlines what is meant by flexible working, who is entitled to it and the possible remedies open to employees that aren’t granted it:
Table of contents
- What is flexible working?
- What are examples of flexible working?
- Who can request flexible working?
- How often can I make a request to work flexibly?
- What rights do I have to request flexible working?
- How do I make a request for flexible working?
- What if my request to work flexibly does not comply with the statutory procedure?
- How will my employer deal with my request to work flexibly?
- If a request is accepted will the change be a permanent one?
- Can I request to work flexibly on a temporary basis?
- If my employer agrees to my request to work flexibly, can I have a trial period before the change becomes permanent?
- On what grounds can an employer reject a request to work flexibly?
- Can I withdraw a request to work flexibly once it’s been made?
- Do I have the right to appeal if my employer rejects my request to work flexibly?
- Can I make a discrimination claim if my employer rejects my request to work flexibly?
- Can I resign and claim constructive unfair dismissal if my employer refuses my request to work flexibly?
- Do I have the right to work flexibly following my return from maternity leave?
- Can I bring a claim in the Employment Tribunal if my request is not granted?
Flexible working is the term used to describe a variation in the way an employee works. It covers (i) a change to the hours worked (ii) a change to the times when an employee is required to work and (iii) a change to the place of work.
Working from home, working part time and job sharing are all examples of working flexibly.
Any employee with 26 week’s service can request to work flexibly. In addition, some employees with less than 26 weeks service may be entitled to request to work flexibly. For example, a disabled employee that needs extended breaks at work may ask to work flexibly and such a request would also constitute a request for a reasonable adjustment under disability legislation (pursuant to which an employee does not need 26 week’s service.)
An employee is only entitled to make one request every 12 months under the statutory scheme, although an agreement can be reached with an employer separately to make more requests.
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The statutory scheme sets out a procedure for making a flexible working request which should always be followed as an employer can reject a request if it is not made in the correct way. Any request must be made in writing and state:
- The date of the application, the change you are seeking and when you would like it to come into affect
- What effect you think the requested changed would have on your employer and how that effect could be dealt with
- That the request is a statutory request
- Whether or not you have made a previous application and if so, the date of that application
A failure to comply with the statutory procedure is one of the grounds under which an employer can refuse to grant a request for flexible working so we would also recommend complying with the statutory scheme where possible. However, it is good practice for employers to inform you if your request has not been made in the right way, although they are under no obligation to do so.
Once an employer receives a request, they are under an obligation to deal with it in a ‘reasonable manner.’ There is no statutory definition of ‘reasonable manner’ but Acas do make recommendations on how an employer should deal with a request.
Acas recommends that the employer should talk with the employee as soon as possible after receiving a request. When discussing the request the employer should make sure the employee understands the impact the change will have on their terms of employment, including any reduction in salary, bonus or pension entitlement.
Acas recommends that in order to deal with a request in a ‘reasonable manner’, employers should allow employees to be accompanied at the meeting by a work colleague or trade union representative and that the employee should be informed of that right prior to the meeting.
They must notify the employee of their decision within 3 months of the request being made, unless an extension has been agreed between the parties.
Yes, under the statutory scheme, the change if agreed with be a permanent change to your terms and conditions of employment, although it is open to the parties to agree otherwise.
If both parties agree the change can be temporary one for a limited period only. If you do want the change to be temporary only, it makes sense to state that in the original request as well as the duration of the desired change.
Case study – Giles v Geach and Jones t/a Cornelia Care Homes (ET/3100720/05)
In this case the Employment Tribunal held that the requirement that a payroll clerk work more than 16 hours per week in the office was indirect sex discrimination, awarding the claimant almost £30,000 in compensation
If my employer agrees to my request to work flexibly, can I have a trial period before the change becomes permanent?
The statutory scheme doesn’t include a trial period, although it might make sense for both parties to agree to a trial period and this can do be done outside of the statutory scheme. Whilst an employee cannot insist on a trial under the statutory scheme, it may be able to argue they should be offered a trial period as part of dealing reasonably with their request.
The statutory scheme allows employers to reject a request to work flexibly on the following grounds:
- the burden of additional costs
- a detrimental effect on an ability to meet customer demand
- an inability to re-organise work among existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- an insufficiency of work during those periods the employee proposes to work
- planned structural changes (for example, where
the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans)
Yes. You should do so in writing and be aware that you will not be able to make another request for a period of twelve months. In addition, an employer is entitled to treat a request as withdrawn if an employee (without good reason) fails to attend the first meeting arranged by an employer to discuss the request as well as the next meeting arranged for that purpose. They are also entitled to treat a request as withdrawn if the employee, without good reason, fails to attend both the first appeal meeting arranged on their behalf as well the next one arranged for the same purpose.
Under the statutory scheme there is no right of appeal if your request is rejected. However, an employer can agree separately to allow an appeal and Acas advises that it is good practice to do so. In fact, the right of appeal could be seen as intrinsic to dealing with a request in a ‘reasonable manner.’ Whilst the decision to refuse a request is a subjective one for the employer, if it is based on incorrect facts an employee could raise a grievance in respect of it or lodge a claim in the Employment Tribunal.
Did you know?
You may be able to make a claim to the Employment Tribunal for discrimination if your employer is refusing to let you work flexibly
Possibly. Some employees who make a request to work flexibly may have further statutory protection. This might include employees who are making the request to work flexibly because of childcare commitments (the rejection of their request might constitute indirect or direct sex discrimination), for religious reasons (e.g. not wanting to work on the Sabbath) (indirect religion or belief discrimination) or because they are disabled and require a reasonable adjustment and the flexible working request constitutes a reasonable adjustment (disability discrimination). If an employee does consider their request to also be a request for a reasonable adjustment, we would always advise the employee to state that in the original request.
To summarise, if your request for flexible working is rejected then you may have a claim for:
- Sex discrimination;
- Disability discrimination;
- Religious or philosophical belief discrimination; and/or
- Constructive dismissal
Can I resign and claim constructive unfair dismissal if my employer refuses my request to work flexibly?
If, in dealing with your flexible working request your employer conducts themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence, you may be entitled to resign and claim constructive unfair dismissal.
An employer does not have to allow an employee returning from maternity leave to work flexibly, but an employee does have the right to request it and if a request is made, an employer must deal with it in the correct way.
If your employer made their decision based on incorrect facts, it can be formally challenged in an Employment Tribunal. An award of up to 8 weeks’ pay (subject to the statutory cap on a week’s pay) can be made by the Employment Tribunal if your claim is successful. They can also order that your employer reconsider your request.
Examples of compensation awarded in cases where flexible working has been denied
- Giles v Geach and Jones t/a Cornelia Care Homes ET/3100720/05 – in this case the Employment Tribunal held that the requirement that a payroll clerk work more than 16 hours per week in the office was indirect sex discrimination, awarding the claimant almost £30,000 in compensation (read our analysis of this case here)
- Collinson v Dr Michie & Others (t/a Blacketts Medical Practice) ET/2501780/2018 – in this case the Employment Tribunal held that an employee’s associative disability discrimination claim succeeded when her employer insisted she be available to cover sickness absences at short notice because they were worried about her having to care for her disabled twins (read our analysis of this case here; read the Employment Tribunal judgment here)
- Fairclough v Forever 21 (UK) Ltd ET/2400060/2018 – in this case the Employment Tribunal held that the Employment Tribunal held that a policy that employees must work 40 hours per week amounted to indirect sex discrimination, awarding the claimant £15,000 in compensation as a result (read our analysis of this case here; read the Employment Tribunal judgment here)