Flexible Working Requests

Flexible Working Requests

Increasingly in recent years, a work life balance has become more and more important for employees and as a result some employers will have seen an increase in flexible working requests. It is therefore important that employers know how to deal with flexible working requests fairly and objectively in order to minimise the risk of potential discrimination and constructive dismissal claims.

This article considers some frequently asked questions regarding statutory flexible working requests. Please note that the information set out below may differ where contractual provisions concerning flexible working requests exist.

1. Which employees are allowed to ask for flexible working?

From day one, employees can make a flexible working request and their employer has a two-month deadline to respond (however this may be extended if the employee agrees). An employee cannot make more than two requests in a 12-month period. The employer must also consult with an employee before refusing a request.

2. Do employees have to follow a particular procedure when making flexible working requests?

Yes, an employee must make a request in writing and set out:

· the date of the request;

· state whether they have previously made a flexible working application to the employer and, if so, when;

· state that it is an application made under the statutory procedure; and

· specify the change applied for and the date on which it is proposed the change should become effective.

The Acas Guide on the right to request flexible working also suggests that the employee should state if they are making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability. Ideally an employee should provide as much information as possible about the changes, as well as what circumstances led to their request and how the changes could be accommodated. This will help the employer understand why they are making the request and if they could find an alternative way of assisting the employee if they are unable to accommodate the request in full.

3. Does an employer have to follow a particular procedure when considering flexible working requests?

Yes, the Acas Code sets out a number of recommendations that employers should follow in dealing with flexible working requests:

· Once an employer receives a flexible working request they must consider it and deal with it in a reasonable manner. An employer should arrange a meeting to discuss the employee’s request as soon as possible if they cannot accept a written request in full. However, if an employer wishes to accept an employee’s request, then a meeting is not necessary.

· Employees should be allowed to be accompanied by a work colleague at any meeting to discuss their request.

· The meeting should take place in a suitable private location.

· The employer should consider the benefits of an employee’s request against any adverse business impact of implementing the requested changes. Employers must be careful to ensure that they are not unlawfully discriminating against any employees when considering flexible working requests.

· Once the employer has reached a decision, they should inform the employee of their decision in writing within two months from the date on which the employee made their request (or such longer period as the parties may agree). Any refusal should clearly explain the business reason(s) together with any additional information which is reasonable to help explain the decision.

· If an agreement is reached to vary an employee’s working conditions, then the employer must provide a “section 4 statement”, which is a written statement of changes to the employee’s terms and conditions within one month of the changes taking effect.

· An employer may wish to use a trial period to determine whether or not an employee’s flexible working request would work in practice. However, the length of a trial period should be no longer than necessary.

· An appeal process is not mandatory under the legislation but the Acas Code suggests that introducing an appeal process is good practice and any written decision should make it clear that the employee has the option to appeal as well as how they may appeal and the applicable time frame.

4. Does an employer have to allow employees to work flexibly?

No, an employer does not have to allow employees to work flexibly, however all requests must be considered fairly and objectively. An employer can only refuse a flexible working request on one or more of the following eligibility grounds:

· the burden of additional costs;

· detrimental effect on ability to meet customer demand;

· inability to reorganise work among existing staff;

· inability to recruit additional staff;

· detrimental impact on quality;

· detrimental impact on performance;

· insufficiency of work during the periods the employee proposes to work; and

· planned structural changes.

If a request is technically flawed (i.e. it does not meet the requirements listed above in section 2), then an employer should consider explaining this to the employee and suggesting that they re-submit a valid request. The limits on making requests within a 12-month period will not apply where a request is technically invalid.

Flexible working arrangements can benefit both employees and employers. It is advisable for employers to have in place their own flexible working policy so that both employees and employers are aware of how flexible working requests will be dealt with.