Flexible working
Flexible working is about recognising the different demands and interests we all have in our lives as employees, parents, carers and human beings. It is also about recognising employer needs (working patterns and skills) and how we can reconcile these with individual needs. An employee may wish to request to work flexibly in altering the number of hours worked per week, the location that the work is done, or when the work is done for example.
This section of the Legal guide will deal with the entitlement and procedure for requests to work flexibly that are received on or after 30 June 2014 (in Northern Ireland (NI)) or 6 April 2024 (in England, Wales & Scotland).
We've produced a guide which provides a checklist of things to think about when processing flexible working requests, plus a template flexible working policy and template letters to respond to an employee who requests flexible working on a formal basis - find the guide here
What is flexible working?
Flexible working can mean anything from an adjustment in working hours, working times or a change to allow work from home. It was previously only open to employees who had responsibilities to care for a child under the age of 17 (18 in the case of a disabled child), or for an adult relative such as a spouse, civil partner, partner or other relative (e.g. a mother or father). In 2014 this changed and all employees who had been employed for at least 26 weeks could ask their employer for flexible working arrangements. On 6 April 2024 this right was extended to all employees from day one of their employment (except in Northern Ireland where 26 weeks continuous service is still required). It should be noted that this is still a right to a request. This means that employers are not required to grant the proposed change but if a request is not being accepted in full or is likely to be rejected the employer must consult with the employee before doing so. As previously was the case, employees will still need to make a written request for flexible working, but the rigid statutory procedure that used to apply has now been removed, together with the employee's statutory right to appeal the employer's decision.
However, there is now an overall requirement for employers to deal with requests within a two (three in NI) month period. ACAS have introduced a Code of Practice for handling requests in a reasonable manner. Note that the Code still recommends, amongst other things, that employers allow employees to appeal against decisions.
There are specified grounds on which employers are entitled to decline a request, for example where the change would have a detrimental effect on the ability to meet customer demands. The employer will need to give a written reason for declining a request.
The Government's intention is that the change will benefit employees by improving the work-life balance.
Who can make a request to work flexibly?
For requests made prior to the 6 April 2024, the right to request to work flexibly only applied to employees after 26 weeks’ continuous service. This remains the position in Northen Ireland. For requests made on or after the 6 April 2024 all employees can make a flexible work request from day one of their employment.
From this date, the statutory ‘ACAS Code of Practice on handling flexible working requests’, and accompanying ACAS guidance document (created to help to understand the statutory right), supplement the new statutory duty to deal with applications in a reasonable manner set out in the Employment Rights Act 1996 and associated regulations.
The ACAS Code sets out the new procedure that will need to be followed on receipt of a written request by an employee and will be taken into account by Employment Tribunals when considering cases regarding the right to request to work flexibly. What is ‘reasonable’ will depend upon the individual circumstances of each case.
What is the entitlement?
A qualifying employee has a statutory right to make a written request to work flexibly and on receipt of such request you have a legal duty to consider it. Although this means that any request for flexible working has to be considered very carefully and dealt with in a reasonable manner, it does not mean that employees have an automatic right to work flexibly. You may have very good business reasons (see below) as to why you cannot agree to your employee’s request. If a formal request to work flexibly is approved this will result in a permanent variation to the terms and conditions of employment for that employee.
What is the procedure?
For requests made on or after 30 June 2014, the previous rigid statutory procedure has been replaced with a duty to consider requests in a ‘reasonable manner’. From this date the statutory ‘ACAS Code of Practice on handling flexible work requests’, and accompanying ACAS guidance will replace the previous statutory procedure and will need to be followed when considering a written request by an employee. As an employer you may wish to introduce a flexible working policy in order that requests are handled consistently and so that everyone is aware of the correct procedure to follow.
An employee wishing to make an application to work flexibly must do so in writing and must include certain specific information including:
- the date of the application, the change to their working terms and conditions that they are seeking, and when they would like this change to be implemented; and
- a statement that the application constitutes a statutory request and if/when they have made a prior application.
Discuss the request
Once you have received a written request, if you are not going to agree to it partially or fully you must arrange a consultation meeting as soon as possible to discuss the request with the employee. The meeting should be held in a private place where possible.
Although the right to be accompanied to the meeting has now been removed, the ACAS Code of Practice and the accompanying guidance document states that it remains good practice to allow the employee to bring a companion (a co-worker or a trade union representative) along to the meeting should the employee wish to and it is important to inform the employee of this.
If you are happy with the request and wish to approve the proposed amendments to the employee’s terms and conditions of employment, then a meeting is not strictly necessary.
Consider the request
As an employer you are legally required to consider the proposed request and the ACAS Code states that you should assess the likely benefit to the employee and the business against the possible negative impact on the business. Once you have made a decision, you will need to inform the employee as soon as is possible and it is best practice do so in writing in order to avoid confusion later.
If you accept the request, or accept it with proposed modifications, then you will need to discuss the best way to implement the changes to the terms and conditions of employment and the date that the changes will come into effect.
Appeals
If you decide to reject the application, you will need to have first consulted with the employee before informing the employee of this decision. Although there is no longer a legal requirement to allow an appeal meeting to take place, the ACAS Code states that if new information comes to light or if the employee believes that the application was not handled in a reasonable manner and in accordance with the employers flexible working policy, then an appeal should be allowed and the employee should be informed of this. Any appeal should be dealt with as quickly as possible and in any event within the total “decision period” of 2 months (3 months for NI). Again, the ACAS Code states that it is best practice to allow the employee to be accompanied to the appeal meeting.
The request to work flexibly can only be rejected for one or more specified business reasons as set out in legislation. See below for a list of the business reasons.
Deal with the request promptly
The ACAS Code states that requests under the new procedure should be dealt with promptly. There are no longer strict time limits to complete each stage of the procedure.
The new legal requirement is that a request to work flexibly (including any appeal against a rejection of the application) must be completed and decided upon within the ‘decision period’ of two (three in NI) months of the date that the first application was made. This time frame can be extended if both parties agree.
Only two requests may be made within any 12 month period, this includes any requests to make changes to the employee’s contract under the Workers (Predictable Terms and Conditions Act 2003. If approved, the result will be that contract of employment will be permanently varied for that employee.
ACAS have produced a template form for requesting flexible working.
Are agency workers entitled to make a flexible working request to us?
The right to request flexible working, which previously allowed employees to request a contractual change in working arrangements to care for a dependant, was extended to all employees on 30 June 2014.
In order to make a flexible working request to an employer, the individual making the request must be a ‘qualifying employee’ – that is a person who:
- is an employee (i.e. on a contract of employment);
- has been continuously employed for a period of 26 weeks for those in NI, for England Scotland and Wales it is a day one right; and
- is not an agency worker (other than an agency worker returning from a period of parental leave).
An agency worker for this purpose is an individual who is supplied by a person to work for another under a contract or other arrangement. This means that an employed agency worker who is supplied to work for your client(s) does not have the right to make a flexible working request to your organisation, unless they are returning from a period of parental leave.
What are the permitted business reasons for refusing requests?
The law on flexible working only gives an employee an opportunity to request flexible working, it does not give them an absolute right to work flexibly. There are a series of specific business grounds on which you are entitled to turn down an application. The reasons are as follows:
- 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 performance;
- Detrimental impact on quality;
- Insufficiency of work during proposed hours;
- Planned structural changes.
You should be aware however that an employee can still bring a claim under the Equality Act 2010 if they feel that you have discriminated against them. If an Employment Tribunal believes that you cannot justify a refusal to allow flexible working, it can award compensation for discrimination and/or recommend that you allow the employee’s request.
I have received a written application from an employee to work flexibly, but the employee has failed to turn up to a meeting scheduled to discuss the application, what should I do?
The ACAS guide suggests that any meetings arranged should take place at location and time that is convenient to both parties. The first meeting to discuss the application (and any appeal meeting) need not be in person if this is not possible and if the employee agrees, you can discuss the application over the phone or via another method.
If an employee fails to attend any meeting (including an appeal meeting), then you should re-arrange the meeting for an alternate date. If the employee then also fails to attend the original meeting and the re-arranged meeting without good reason you are permitted to treat the request as having been withdrawn and you will need to inform the employee of this.
Our company recently approved a request from an individual to work part time, but we have now received a second request from another employee and may be unable to approve this request due to recent work volumes, do we have to approve this new request?
If it is not possible to approve all requests, then you should deal with the applications in the order in which they were received. You are not required to decide on which is more deserving but should consider each case on its own merits taking into account the individual and business benefits and any impact the change could have on the business.
If there now exists a business reason (see above) as to why you cannot approve the new application, then you can take this new business reason into account. You should still follow the procedure in a reasonable manner and consider the request carefully and you may be able to reach a modified agreement. It is advisable to deal with such instances in the company policy on flexible working so that the procedure is clear to all parties involved.
What will happen if we do not consider a request made by an employee?
An employee can bring claim to an Employment Tribunal if:
- they feel that you did not deal with the statutory request in a reasonable manner;
- you did not complete the procedure within the designated three month time period;
- you fail to base the decision on one of the permitted business reasons;
- you base the decision of facts that were not correct; or
- you treated the request as revoked when you were not entitled to do so.
The Employment Tribunal will take the ACAS Code and associated guidance into account when dealing with any complaints regarding the right to request to work flexibly
The Employment Tribunal may order that you reconsider the request, or that you pay the employee compensation to a level that is just and equitable (up to a maximum of 8 weeks’ pay).
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.