How to Respond to a Flexible Working Request

Flexible working arrangements can not only be beneficial for those employees looking for a better work/life balance, but also for the employer’s business. Happier and healthier employees can lead to increased performance and productivity, not to mention reduced absenteeism and staff turnover rates. It is therefore important for employers to understand an employee’s rights when it come to flexible working, as well as how to handle these requests and what practical steps must be taken once a request has been approved.

Under the Flexible Working Regulations 2014, qualifying employees that meet the minimum service eligibility criteria who have not made a request in the previous 12 months can request flexible working. The right to request flexible working applies to all employees, not just parents and carers.

The provisions only apply to employees who have worked for the same employer for at least 26 weeks at the time of making their request. Employees can only make one request in any 12-month period. The request, known as making a statutory application, must follow a prescribed format. Employers are then under a duty to handle the request fairly and within a specific timeframe.

While employees with less than 26 weeks service do not have a statutory right to request flexible working, some employers may allow all staff to make a request on a non-statutory basis. This means the employer is not bound by the rules of processing a statutory flexibility request.

By understanding the law around requests for flexible working, and by following best practice tips on responding to these requests, the employer can facilitate a much smoother transition from the employee’s old way of working to their approved new way of working.

 

Flexible working bill

Following an extensive period of consultation, the Employment Relations (Flexible Working) Bill has been given Royal Assent, although it remains to be confirmed when the new law will take effect. Its key provisions relate to

• Employees will be able to submit two formal requests per year, as opposed to the existing single request per year.
• Before rejecting an employee’s request for flexible working, employers will be required to consult with the employee in order to explore all possible solutions.
• Employers will be required to respond to the request within two months, rather than the existing three months, which increases the need to begin the process promptly (e.g., arrange the first meeting shortly after the request comes in).
• Employees will no longer be required to specify how the impact of their proposed flexible working arrangement should be dealt with by their employer.

In addition, separate new legislation removes the requirement for 26 weeks’ service, making the right to request flexible working a ‘day one’ right.

 

What are the different types of flexible working?

Flexible working refers to an arrangement agreed between the employer and the employee as to the employee’s hours to be worked or their place of work.

There are many different forms of flexible working to consider for a change in working pattern:

• Compressed hours – where employees work their usual full-time hours but in fewer days, for example, where a 5-day week is compressed into a 4-day week.
• Working from home – doing your job from home or somewhere other than the ordinary place of work.
• Flexi-time – where an employee is required to work within a specified core period, but can choose when to start and finish work within agreed limits.
• Part-time – where an employee is contracted to work full-time hours but works reduced hours, usually by working fewer working days or less hours each day.
• Job share – where a full-time post is split into 2 part-time roles, with each employee working at alternate times to share the total workload.
• Staggered hours – where an employee has different start and finish times to other staff.
• Hybrid-working – where an employee undertakes some of their duties from home, rather than at their normal place of work.
• Annualised hours – where an employee’s working hours are calculated as an annual total but there is some flexibility about when they work, often with core hours.
• Varied shift patterns – where an employee alters their normal shift pattern to work a different shift pattern, such as switching from morning to afternoon shifts.

 

Do employees have the right to request flexible working?

By law, an employee has the legal right to ask their employer for a change in the terms and conditions of their employment to work flexibly, either on a temporary or permanent basis. The right to request flexible working is not limited to just parents or carers, but extends to all employees, provided they have worked for their employer for a minimum of 26 weeks at the date the request is made. This is referred to as making a ‘statutory application’.

Historically, the statutory right to request flexible working only applied to those caring for children or adults. Under the current legislation, any eligible employee, regardless of their caring responsibilities, can apply to work flexibly for any reason. Equally, given the mutual benefits of flexible working, many employers will accommodate non-statutory flexible working requests for those employees with less than 26 weeks’ service.

Employees can only make a single statutory request during any 12-month period to the same employer, although employers can consider more than one request at their discretion.

 

What is the difference between a statutory and non-statutory flexible working request?

The employee will need to decide whether to make a statutory request or a non-statutory request for flexible working.

Employees can only make a statutory request if they have worked for the same employer for at least 26 weeks and they must follow the process prescribed by law. The statutory process requires the request is made in writing and they can only make one in any 12-month period. The request letter should state the date of the request and whether any previous application has been made and the date of that application.

As an employer, you are required to handle the request in accordance with the law on flexible working. You must consider the request seriously, and complete the whole process (including dealing with any appeal) within three months.

A non-statutory request can be informal or informal, and the process will be determined by organisational policy. Generally, the employee should make the request in writing, even if they are making it informally, to be clear what they are asking.

Employees can only make a statutory request if they are eligible. If the individual qualifies for both options, they will need to decide which type of application to make. Typically, if it is a minor, temporary change, the non-statutory option may be more appropriate and will not affect their ability to apply under the statutory route during the course of the following 12-month period. The organisation’s flexible working policy may also be more attractive than the statutory provision, for example where there is no minimum service requirement.

 

How should employees make a statutory flexible working request?

The process to make a statutory flexible working request should be set out clearly for employees to access, such as in the organisation’s flexible working policy.

To make a statutory flexible working request, the employee should write to their employer. The letter should include the date of the application and of any previous statutory flexible request, a clear statement that they are making a statutory request, details of their proposed arrangement and proposed start date, an explanation of the potential impact of the proposal and how this could be overcome.

The employer should arrange a meeting with the employee to discuss the request, before making a decision. The meeting is not a mandatory requirement but it is good practice and can help to discuss any concerns either party may have.

The law requires the process to be completed within three months of the request being received, this includes any appeal stage, unless agreed by both parties.

 

How should flexible working requests be handled?

The basic steps involved in making and responding to a flexible working request are:

• the employee puts their request in writing to the employer
• the employer considers the written request and makes a decision within a period of 3 months, or longer by agreement with the employee
• if the employer approves the request, they must go on to change the employee’s contract of employment to reflect the changes to the terms and conditions
• if the employer refuses the request, they must write to the employee providing written reasons for that refusal.

 

In many cases, the employee’s flexible working request may not necessarily contain all of the correct information required of them. However, even if some of this information is missing, it is often best to prompt the employee for further clarification or to simply arrange a meeting with the employee to discuss the matter directly. If the employer is happy to approve the request immediately, a meeting will not be needed. If discussions are necessary, the employee should be allowed to be accompanied by a work colleague.

As a matter of best practice, a meeting should be arranged as soon as possible upon receipt of a flexible working request so that a decision can be made well within the statutory timeframe. Importantly, the employer must make a decision, and notify the employee of that decision, within 3 months, unless otherwise agreed. Responding to a request promptly will also help to create a positive environment in which to discuss how the employee’s proposals might work, and to get greater insight into what changes they are looking for and how these changes might benefit both the business and the employee. It will also provide an opportunity to discuss any alternative solutions if the employee’s request cannot be met.

By recognising the importance of flexibility for the employee and listening carefully to what they have to say, this can often help the parties to find a mutually acceptable way forward, even if the request cannot be agreed in full. For example, where an employee has requested a hybrid-working arrangement, working from home 3 days a week and from the office 2 days a week, it may be possible for the employer to agree to 2/3 split instead.

It is good practice to have in place a flexible working request policy, to ensure that staff understand the procedure for making a request and how their request will be dealt with. It can also help to instil confidence in employees that their requests will be handled fairly and consistently, whilst making it clear that each request will be assessed on a case-by-case basis. Agreeing to one request should not set a precedent for another similar request, where each request must be based on relevant business considerations at the date of application.

 

What happens if the request is accepted?

If the employer approves the employee’s flexible working request, or accepts the request with some modifications, they should discuss with the employee how and when the changes might best be implemented. Once a flexible working request has been agreed in principle, and where the new working arrangement is to be treated as a permanent change, the employer should write to the employee with a statement of the agreed changes, together with a start date as to when these changes will come into effect.

The employer must also formalise any changes by incorporating the new terms and conditions into the employee’s contract of employment. This should be done as soon as possible, but no more than 28 days after the flexible working request is approved.

In cases where the employer and employee are unsure as to how the request may work in practice, and how effective this will be in meeting both the needs of the employee and the business, the parties can agree to a trial period before making any arrangement permanent. In this way, the parties can assess how well the proposed change will work. However, even a temporary change must be set out in writing, whilst making it clear that this is only a temporary variation to the emplo

 

Can an employer refuse a flexible working request?

By law, employers can refuse an application for flexible working where they have considered the request in a reasonable manner and they can prove a genuine business reason for rejecting the request.

When responding to a flexible working request, it is important for employers to understand their statutory duties and obligations, and how to fairly deal with such requests whilst still meeting the operational needs and objectives of their business. Guidance on dealing with statutory applications can be found in the Acas code of practice on flexible working requests. However, in brief, the statutory right to make a flexible working request does not give the eligible employee an absolute right to work flexibly for their employer, but it does place a duty on the employer to deal with the request ‘in a reasonable manner’.

By law, an employer can refuse a flexible working request if they have a sound business reason that weighs against a change in the employee’s normal working pattern, provided they have dealt with the request in a reasonable manner. Examples of dealing with requests in a reasonable manner include assessing the pros and cons of the employee’s application, holding a meeting to discuss the request with the employee and offering an appeals process. An employee does not have a statutory right to appeal any refusal of a flexible working request, but this can help the employer to demonstrate that they acted reasonably.

Provided the flexible working request has been dealt with reasonably by the employer, and as long as any refusal does not unlawfully discriminate against an employee, a request can be lawfully refused if the employer feels that they cannot accommodate the employee’s needs on this occasion for any one of the following reasons:

• the request will result in additional costs to the business
• an inability to meet customer demand
• an inability to reorganise work amongst other staff
• an inability to recruit additional staff to provide cover
• a detrimental impact on quality and/or performance
• a lack of work for the employee to do during the proposed working times, and
• the business is planning structural changes to the workforce.

The refusal must on the basis of at least one of the following reasons:

The employer should write to the employee stating the reason(s) for refusal of the request and detailing any provision for appeal. 

You can offer alternative solutions to provide the employee with flexibility, but this is not a requirement.

Employees cannot complain simply because they disagree with the decision. In addition, they can only make a tribunal claim if their employer did not handle the request in a ‘reasonable manner’, if they wrongly treated the application as ‘withdrawn’, if they dismissed or treated the individual adversely because of a flexible working request or if they rejected the application based on incorrect facts.

 

Can employees appeal a flexible working decision?

Employees do not have a right to appeal requests for flexible working. However, many employers offer the opportunity to appeal the decision as this may help to show they have acted in a reasonable manner in handing the request, should the case proceed to a tribunal claim.

If you do opt to offer the opportunity to appeal, the employee should follow the internal process.

If the application is refused again at the appeal stage, the employee may look to raise a grievance, and is likely to take legal advice or guidance from their trade union representative if applicable. Depending on the facts, the employee may be entitled to bring a claim if their employer’s reason for rejecting the flexible working request was not reasonable or if the process followed was not fair.

A tribunal claim in most cases will need to be brought within 3 months of the employee being informed of the employer’s refusal, or hearing the request was deemed withdrawn, or the date by which the employer should have responded (but failed) to the request.

The employee will need to show their employer did not handle the request in a reasonable manner, that they rejected the application based on incorrect facts, they wrongly treated the application as withdrawn or they dismissed or treated the employee adversely as a result of the flexible working request.

The employee could work under protest under their existing terms while making a claim under the flexible working rules or a discrimination claim. Alternatively, if they have to resign as a result of the rejection, they could be eligible to claim constructive dismissal.

 

Can an employer change a flexible working arrangement after it has been accepted?

If the employee has previously made a statutory request for flexible working that was accepted and subsequently made part of their contractual terms, it would be unlawful for the employer to make changes to the arrangement or to withdraw the flexible terms without first seeking their consent, unless there is express provision within their employment contract which allows the employer to make these changes without agreement.

If the employer makes changes to the contract without the employee’s agreement, they could have a claim for breach of contract. If the employee resigns as a result of the change in terms, they may also be able to claim constructive dismissal.

If the request for flexible working was non-statutory, the position may be less clear. Often non-statutory requests relate to short term arrangements or include a trial period, in which case, the employer may be entitled to alter the terms of flexibility without first seeking the employee’s consent.

 

Key considerations for employers

Flexible working requests can, if not handled appropriately, impact morale and result in a dispute between the employer and the employee. Where an issue cannot be resolved by informal or internal procedures, the employer may be faced with an employment tribunal claim.

Where a flexible working request is refused, the employee may be able to complain to an employment tribunal on the basis that either the employer failed to deal with the request in a reasonable or timely manner, did not have a sound business reason for refusing the request and/or the decision to reject the employee’s application was based on incorrect facts. If successful, the tribunal could order the employer to reconsider the application, and for the employer to pay the employee an award of compensation of up to 8 weeks’ pay.

However, the risks around flexible working requests and how the employer handles these are even greater when it comes to the potential impact on the business. By unreasonably refusing a request, this can lead to reduced employee engagement. It can even result in the loss of a valuable member of staff, where an employee is so unhappy with their work/life balance that they feel forced to resign. It is therefore always best, when responding to a flexible working request, to carefully weigh the benefits of the requested changes against any adverse business impact of implementing these changes. Where the initial request cannot be agreed, it is often usually possible to find a basis for compromise with the employee, where all options should be fully explored before any outright refusal.

By following the guidance in the Acas Code of Practice, employers can minimise the risk of a tribunal complaint when responding to flexible working requests. This is a non-statutory code that employers are not legally bound to follow, although its guidance will be taken into account by an employment tribunal if the employee lodges a complaint for any refusal to grant their request. In the event of any uncertainty, this should always be referred to, together with the good practice tips for employers set out in the companion guide.

 

Flexible working request FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.