Most employees (with at least 26 weeks’ service) are now entitled to request flexible working. And with the recent focus on remote working and an increase in work-life balance such requests and likely to increase.
So, what should you be aware of as an employer?
Flexible working – what is it?
Essentially, it is any working pattern other than the normal one. It can encompass changes to the hours an employee works, the times they are required to work or their place of work.
There are countless variations to what flexible working can entail such as:
- Compressed hours (employees work the same number of hours over fewer days);
- Staggering working hours to fit around the school run/training/hobby;
- Working from home for part of the day; or
- Having a set number of hours per year but being flexible with when/how that is delivered.
Who can apply?
Almost all employees with at least 26 weeks’ service qualify
But, an employee who has already made a request is not entitled to make another for 12 months
The only exceptions to this are agency workers, directors and contractual ’employee shareholders’.
How is a formal request made?
The employee must apply in writing and include:
- details of the change they are asking for;
- what effect they think the change could have on the business, and how the business could cope with any such changes if implemented;
- the date the request is made, and the date they would like the change to start;
- a statement that this is a statutory request for flexible working, whether they have made a request previously, and if so its date.
The employer’s obligations
An employer must consider the request in a ‘reasonable manner’. This includes:;
- Arranging a meeting to discuss the request with the employee as soon as possible.
- Allowing the employee to be accompanied by a work colleague if they want.
- Weighing the benefits of the proposed changes against any adverse impact on the business.
- Letting the employee know your decision as soon as possible.
- Allowing the employee a right of appeal.
- negotiate with the employee to agree changes to what they are proposing;
- refuse an application to work flexibly (but only if there is a clear business reason to do so).
Reasons for refusing a flexible working application.
If an employer refuses the applications, this must be done on one of the following grounds:
- the burden of additional costs;
- a detrimental effect on the ability to meet customer demand;
- an inability to reorganise work among other employees;
- an inability to recruit additional employees;
- a detrimental effect on quality;
- a detrimental effect on performance;
- insufficient work at the times when the employee proposes to work;
- planned structural changes.
* An employer must give their decision within three months (although this deadline can be extended if the employee agrees).
Disagreement between the parties
Where an employer refuses a flexible working application, the employee may want to take further steps. Ideally, the matter should be resolved internally and informally so as not to damage the relationship. Where this is not possible, an employee may decide to;
- Raise a formal grievance;
- Ask ACAS to assist them to mediate the matter;
- File a claim at an employment tribunal or via the ACAS arbitration scheme.
- The employee can make a claim if an employer fails to consider the request in a reasonable manner or to make a decision within three months.
- If a claim has been filed, an employer can be ordered to reconsider the request and/ to pay compensation. The amount payable is decided by the employment tribunal or the ACAS arbitrator and is limited to a maximum of eight weeks’ pay (currently capped at £538 per week).
- An employee may be able to claim discrimination. If a discrimination claim succeeds, compensation is not capped.
* When considering flexible working requests, an employer should ensure that each case is considered fairly and consistently to avoid further claims, such as discrimination.
For example, employers should:
- Not treat requests differently depending on a ‘protected characteristic’ such as the employee’s age, gender or marital status;
- Not indirectly discriminate, for example by refusing a request from a new mother without an objective justification;
- Not refuse a request for flexible working from a disabled employee, when allowing flexible working would be a ‘reasonable adjustment’ to ensure that the employee isn’t unfairly disadvantaged;
- Not treat fixed term and/or part-time employees any differently to full-time employees.
Ultimately, employers benefit from flexible working too as studies have shown that allowing flexible working can attract employees to a business, reduce employee turnover and boost productivity and morale.
For assistance with this subject or any other employment law related matter, please contact our Head of Employment, Ilinca Mardarescu.