How to manage flexible working

An employee’s right to request flexible working changed on 30 June 2014. Previously, employees had a legal right to request flexible working if they cared for a child or adult (known as a statutory application). However, on 30 June 2014 this changed so any employee who has worked for an employer for more than 26 weeks has a right to ask for flexible working. Employers will have a statutory duty to consider all applications in a reasonable manner (i.e. employers cannot just say “no” without providing valid business reasons).

Flexible working can include:

  • Job sharing – 2 or more people do 1 job and split the hours
  • Working from home – it might be possible to do some or all of the work from home
  • Part-time hours – working less than full-time hours (usually by working fewer days)
  • Compressed hours – working full time but over fewer days
  • Shift working – providing shift work to split working hours
  • Flexitime – the employee can choose when to start and finish work (within agreed limits) but works certain ‘core hours’ e.g. 10am – 4pm every day
  • Annualised hours – the employee has to work a certain number of hours over the year but they have some flexibility about when they work. There are sometimes ‘core hours’ which the employee works each week, and they work the rest of their hours flexibly or when there’s extra demand at work
  • Staggered hours – the employee has different start, finish and break times from other workers
  • Phased retirement – default retirement age has been phased out and older workers can choose when they want to retire. This means they can reduce their hours and work part time

Employees must make the request in writing, and must include the following information in accordance with Employment Rights Act 1996 regulations:

  • The date of the application
  • The change to their working conditions they are requesting, and when they’d like to see the changes come into effect
  • What effect, if any, they think their request would have on you as their employer, and how any such effect would be dealt with
  • A statement that this is a statutory request
  • Confirmation if, and when, they have made any previous applications for flexible working

Once employers receive the written request, they must fully consider it. The employer should arrange to talk to the employee as soon as possible. The employee can be accompanied by a work colleague for this meeting (and any subsequent appeal meeting), and should be informed of this right to be accompanied before any meetings are held. During the meeting the employer should fully discuss the request with the employee in order to ensure they have all the relevant facts before making a decision.

When considering the employee’s request, the employer should carefully look at the benefits of the requested change for the employee before weighing these against any adverse business impact. In considering the request, the employer must not discriminate against the employee.

Once the decision has been made, the employee should be informed as soon as possible. This should be done in writing and should include a full explanation of why the decision has been made. If the employer accepts the employee’s request, it should be agreed exactly how and when the changes will be implemented. Once the request has been agreed, it becomes a permanent change to the contract of employment.

If an employer rejects the request, it must be for one of the following reasons as set out in legislation:

  • The burden of additional costs
  • An inability to reorganise work among existing staff
  • An inability to recruit additional staff
  • A detrimental impact on quality
  • A detrimental impact on performance
  • 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

If an employer rejects the request, the employee should be allowed to appeal the decision if they wish to do so.

The law requires that all requests, including any appeals, must be considered and decided on within a period of three months from first receipt of the request, unless the employer agrees an extended period with the employee.

If the employer arranges a meeting with the employee to discuss the application, including any appeal, and the employees fails to attend both this and a re-arranged meeting without good reason, the employer can consider the request withdrawn. However, the employer must inform the employee of this withdrawal in writing.