- They have worked for you for a minimum of 26 weeks’ continuous employment
- They are legally classed as an employee
- They have not made any other flexible working request in the last 12 months.
It is important to note that the legal right is for an employee to make a request to their employer and to have that request properly considered, not to insist that their employer makes the changes requested.
Whilst the right to make a flexible working request is only available to employees with the necessary service, some employers will allow a request even if an employee does not have the legal right.
The Government is currently consulting on making flexible working requests a day one right rather than a request that can only be made once someone has 26 weeks employment. If the consultation goes as planned the law is likely to be changed early 2022.
Flexible working requests could include:
- Reducing hours to work part-time
- Changing start and finish times
- Having flexibility with start and finish times (flexitime)
- Doing hours over fewer days (compressed hours)
- Working from home or elsewhere (remote working)
- Sharing the job with someone else
The changes could be for all working days, specific days or for a limited time period eg. 6 months only.
Under the Employment Rights Act 1996, a request from an employee must include the following information:
The date of their application, the changes they would like to make, and when they would like the change to come into effect
What impact, if any, they think the requested change would have on their employer and how that could be dealt with in practice.
A statement that this is a statutory request and if and when they have made a previous application for flexible working.
Handling a request
Once an employee has submitted a flexible working request, an employer is legally required to consider the application fairly and in line with the ACAS Code of Practice.
Discuss: Arrange to talk with your employee as soon as possible after receiving the request to get a better idea of what changes they are looking for and how they might benefit the business and the employee. An employer should allow the employee to attend a meeting with a work colleague to discuss the request. If the employer however, intends to grant the request without question, then a meeting most likely will not be needed.
Consider: Employers should consider all requests carefully, weigh up the benefits of the request for the employee and company against any potential adverse impact of implementing the changes. In considering the request, an employer must not discriminate unlawfully against the employee.
Once the request is considered, if the employer feels that it cannot be accommodated in its current form, it should consider whether it could be accepted but with modifications or whether a trial period could be implemented to test the impact of the changes in reality.
Decision: The law requires that all requests, including any appeals, must be considered and decided on within a period of three months from first receipt, unless you agree to extend this period with the employee.
The employer’s decision should be in writing and should set out:
- The agreed change to your working pattern
- The date the new working pattern will start
- The length of time it will last
- A date for reviewing the change
If an employee’s working hours, pay, location of work or holiday entitlement has changed, the employer is legally required to put this in writing within a month of the change coming into effect.
If the request is rejected, the grounds for such rejection should be set out clearly and allow the employee to appeal that decision.
An employer may only refuse a request for one of the following business reasons as set out in the legislation:
- 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
- A 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
Employers need to be aware of the risks of discrimination claims or dismissal claims associated with flexible working requests. Employers need to carefully consider employee’s flexible working requests before refusing them outright. The request should be dealt with reasonably and not refused by solely relying on one of the prescribed grounds.
It is also important for employers to remember that employees with less than 26 weeks continuous service are still able to pursue a claim for discrimination and therefore any requests should be carefully considered to avoid an indirect discrimination claim.
If you have any queries relating to flexible working requests, please contact our employment specialist, Lisa Aitken on 01926 491181 or email: LisaA@moore-tibbits.co.uk.