FLEXIBLE WORKING

A guide on flexible working from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on flexible working, please contact us as soon as possible.

Who can apply for flexible working?

Only employees have a statutory right to request flexible working. The right applies from the first day of employment.

Employees can:

make a maximum of 2 requests during any 12-month period
only have one 'live' request with the same employer at a time.

The right does not apply to self-employed contractors, consultants or agency workers. There is no automatic right to be granted flexible working.

The statutory right is governed by the Employment Rights Act 1996 (ERA). However, there is nothing preventing an employee from making an informal request for flexible working outside of the statutory process. While an employer will not be obliged to follow the statutory procedure in response to an informal request, a refusal without appropriate consideration could give rise to a possible claim (see below).

What kind of flexible working change can an employee request?

An employee may request a change to their employment terms if the change relates to:

hours of work
the times when they are required to work
their place of work (eg a different site operated by the employer).

The scope of the flexible working request includes applications (among others) for:

part-time working
full-time working (if currently part-time)
annualised hours
compressed hours
flexi-time
homeworking
job-sharing
self-rostering
shift-working
staggered hours
term-time working.

How does an employee make a request for flexible working?

A statutory request for flexible working must:

be in writing
be dated
state that it is a statutory request
the change that is being requested (eg a change in working hours)
when the change should start
if any previous statutory flexible working requests were made to the employer
the date of any previous requests.

How should an employer deal with a flexible working request?

On receipt of a flexible working request under the statutory process, the employer must:

deal with the request in a reasonable manner
hold a meeting with the employee to discuss the request
allow the employee to be accompanied to the meeting (this is good practice and not a statutory right)
allow the employee the opportunity to appeal its decision
notify the employee of its decision, including any appeal within 2 months of the request (unless otherwise agreed with the employee)
only refuse the employee's request on one or more of the statutory 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
planned structural changes.

The statutory process is governed by the ERA and the Acas Code of Practice on requests for flexible working (Acas Code of Practice).

What happens after the employer has reached its decision on a flexible working request?

If an employer accepts a flexible working request, or an employee reaches an agreement on a variation of the original flexible working request after discussing this with the employer, the new work pattern will be a contractual variation to an employee's employment, unless otherwise agreed (eg for a trial period). The employer should issue the employee with a written statement of changes to their terms and conditions.

If an employer accepts a flexible working request but for a trial period only, review points should be agreed with the employer. The employer should also extend the 2-month decision period if the flexible working arrangement ends after the trial period.

If an employer rejects a flexible working request, it should provide the employee with the opportunity to appeal its decision. Although there is no statutory right of appeal the Acas Code Practice recommends this. A flexible working request should only be rejected on one or more of the statutory grounds, which is a subjective test.

What happens if an employee cannot attend a meeting to discuss a flexible working request?

An employer will be entitled to notify an employee that it has decided to treat an employee's conduct as a withdrawal of a flexible working request where:

without good reason, an employee has failed to attend both the first meeting arranged by the employer to discuss a flexible working request and the next meeting arranged for that purpose
without good reason, an employee fails to attend both the first appeal meeting arranged by the employer to discuss the appeal and the next meeting arranged for that purpose.

What can an employee do if an employer fails to deal with a flexible working request properly?

An employee may be able to bring an employment tribunal claim if they have made a flexible working request under the statutory procedure and the employer:

failed to deal with the application in a reasonable manner
failed to notify the employee of its decision within 2 months
rejected the application for a reason other than one of the statutory grounds
rejected the application on incorrect facts
treated the application as withdrawn but none of the grounds entitling the employer to do so applied.

Except for the last ground, an employment tribunal claim cannot be brought until either:

the employer has notified the employee of its decision on the application
the decision period applicable to the application, including any agreed extension to that period, has come to an end.

A claim must be received by an employment tribunal within 3 months (ie 3 months less 1 day) of:

the date of the decision
the date the decision period ended
the date the employee was notified their flexible working request had been withdrawn.

The time limit is a strict one and will only be extended in certain circumstances.

The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.

Please see web page Acas early conciliation.

Where an employment tribunal finds a claim relating to flexible working well founded, it must make a declaration to that effect and may make either or both:

an order for reconsideration of the request. If it does this the date of the tribunal’s order will be treated as the date of the request
an award of compensation to be paid by the employer to the employee that the tribunal considers just and equitable, up to the permitted maximum of 8 weeks’ pay.

What if an employee is not eligible to make a statutory request for flexible working?

There is nothing preventing an employee from making an informal request for flexible working if they are not eligible to make a statutory request. Although, an employer is not obliged to deal with the request under the statutory procedure, if it rejects the flexible working request, an employee may have a claim if the request is to:

vary working hours due to childcare arrangements, as this may be indirect sex discrimination
be allowed to leave early one day a week to keep a series of medical appointments to address a long-standing medical problem, as this may be disability discrimination for failure to make reasonable adjustments.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for flexible working advice?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, some of which have involved flexible working.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on the process before and after making a flexible working request and any subsequent employment tribunal claim.