All about Flexible Working Requests

Flexible working arrangements are now increasingly popular with workers in the UK. The number of part-time workers in the UK has increased from 6 million in May 1992 to 8.7 million in June 2019. This is a 45% growth in part-time workers. From 2020, however, the number of part-time workers began to fall while the number of full-time workers began to rise.

What is flexible working?

Flexible working is the name given to any type of working pattern which is different to your existing working pattern. It is an alternative to traditional working hours. It is a way of working which suits an employee’s personal needs and empowers them to make choices about things like when they work, what times they work and where they work.

It helps to promote a good work-life balance and can reduce employee stress and improve overall job satisfaction. This can improve employee retention.

Since the Covid-19 pandemic, which forced many people to work from home, many employers and employees have benefitted from this way of working and have decided to continue this way of working post-pandemic. Many employees enjoyed the flexibility that remote working brought to their lives and employers realised that remote working could be successful and productive. It can also be more cost-effective in terms of office space and other overheads. Removing commuting time and being at home means there is more time to spend with family and more flexibility in any caring responsibilities, which promotes a healthier work-life balance. The number of workers who reported that they worked exclusively from home rose from 5.7% of workers in January 2020 to 43.1% in April 2020.

What are the types of flexible working?

There are various types of flexible working, as different things will suit different people.

Flexible working arrangements might include:

• Changing working hours to fit in with school hours or care arrangements.
• Term time work, which means you do not work during school holidays.
• Changing your hours, for example from weekdays to weekends.
• Reducing your hours from full-time hours to part-time hours.
• Compressed hours, which means working your normal hours in fewer days.
• Working from home or remotely for some or all of the time.
• Flexitime, which means working your hours around agreed core times.
• Job sharing with another person.
• Shift work.
• Time off in lieu.
• Self-rostering, which means your shift pattern is drawn up to match your preferred hours as closely as possible.

You can request your flexible working pattern to be for specific days or shifts only, or all working days. You can request that the changes be only in term time or for a limited time, for example for a few months only.

Hybrid working is a type of flexible working where an employee splits their time between remote working and the workplace. The hybrid working model may be structured in different ways depending on the employer and employee’s needs.

What is the law around flexible working?

All employees regardless of circumstance, are entitled to request flexible working. By law you have the right to make a request to work flexibly if:

• You are legally classed as an employee.
• You have worked for the same employer continuously for at least 26 weeks.
• You have not made any other flexible working request in the last 12 months.

Your employer’s specific policy around flexible working and how to request this should be found in your employee handbook or you can speak to your employer directly.

The law around flexible working is different in Northern Ireland.

How to apply for flexible working

Applying for flexible working is known as ‘making a statutory application’. An employee with at least 26 weeks’ service can request to work flexibly. There is no specific form; however, in order for it to qualify as a statutory request, it must:

• Be made in writing.
• Have the date of the request.
• Explain what change you would like to make to your working pattern.
• Say when you would like the change to happen.
• Say how long you would like to make the change for or if you are requesting a permanent change.
• Say what effect you believe the change would have on the business.
• State how any effect on the business could be managed, for example if you are not in work on certain days or at certain hours.
• State that this is a statutory request that you are making.
• Say if you have made a request previously and, if so, when this was.

The ideal request is one where the employer can see how the flexible working pattern can benefit them as well as you. You may wish to initially have an informal conversation with your employer stating that you are thinking of making a request to work flexibly and to see if they would be open to this way of working. This may help you to address any hesitations that they have about your request. When making your request, plan ahead and think of any objections that your employer may have. This way you can attempt to address their concerns before they arise.

It is also useful for you to make notes of any conversations you have had with your employer and wherever possible have these conversations in writing, for example, via email. This will be particularly helpful if your employer seems likely to agree and then changes their mind. Having everything in writing will be beneficial if your request is refused and you plan to challenge this.

If you are making a request in relation to the Equality Act, or if you are asking for flexible working so that you can care for a child or person with a disability, you should explain in your request the impact on your caring responsibilities if your request is not granted.

Can anyone apply for flexible working?

Some employers will allow you to request to work flexibly even if you do not have the right to do so, and so it is worth asking your employer if this is the case.

However, you have the right to request to work flexibly if you meet the following criteria:

• You are an employee.
• You have worked for your employer for 26 weeks.
• You have not made another flexible working request in the last 12 months.

If you are a parent or carer or returning to work after your maternity leave, then you have the right to request to work flexibly in the same way that other employees who meet the above criteria do. However, if you are unsuccessful in your request, your employer might have other ways for you to have time away from work, for example parental leave or time off for dependants. You can ask your employer for your workplace policy on this.

What happens after you make a flexible working request?

If you have the right to request to work flexibly, then your employer must:

• Make a decision within a maximum time of 3 months, unless a longer time period is agreed with the employee.
• Assess your request fairly following the ACAS Code of Practice on making and responding to flexible working requests.

Your employer is required to handle your request in a reasonable manner. This could include:

• Holding a meeting with yourself in order to discuss your request.
• Assessing the advantages and disadvantages of allowing you to work flexibly.
• Offering an appeal process if your application is unsuccessful.

Your employer must consider your request and must not unreasonably deny your request. Your employer could refuse your request if there is a good business reason for doing so.

These may include:

• Too much additional cost.
• They would be unable to reorganise the workload among the existing staff members.
• They are unable to recruit additional staff.
• There would be a detrimental impact on the quality of work.
• It would negatively impact the ability to meet customer demand.
• It would negatively impact on performance.
• Insufficiency of work during the times you are requesting to work.
• Any planned structural changes.

If you are not eligible to make a request to work flexibly, you could still request to do so; however, your employer can refuse your request on this basis without meeting the above criteria.

An employer will be in breach of the procedure by:

• Taking longer than 3 months to make a decision.
• Giving reasons that are incorrect.
• By not giving one of the permitted reasons.

The ACAS Code of Practice on flexible working requests sets out things that employers should do as good practice; however, they are not legally obligated to do so.

These include:

• Meeting with the employee as soon as possible in order to discuss their request.
• Discussing timescales of making a decision with the employee.
• Considering the request carefully and in as much detail as possible before making a decision.
• Allowing the employee to discuss the refusal and set out an appeal procedure.
• Dealing with an appeal as quickly as possible, if your process allows for an appeal process.

As it would be good practice for your employer to invite you for a meeting in order to discuss your request, this may be done over the telephone, by video chat or face to face. The meeting should be arranged during work hours and at a time that is convenient to you.

If your request to work flexibly is agreed, there may be an initial trial period. If your flexible working request is denied, you could propose a trial period in order to convince your employer that your proposal for flexible working can be achieved.

If the employer agrees to the request, they must change the terms and conditions of the employee’s contract.

What to do if your employer refuses your flexible working request

Unfortunately, you do not always have a right to work flexibly and not every request will be successful. An employer’s reason for refusing your request to work flexibly may be valid. An employer is within their rights to refuse a flexible working request if they have a good business reason for doing so. The employer should write to the employee giving the business reasons for the refusal.

You can take further action if:

• Your employer did not make a decision within 3 months.
• Your employer gave a reason that is incorrect.
• Your employer did not give one of the permitted reasons for refusing your request.

Your employer cannot use a reason for refusing your request that may be classed as discriminatory. This would mean that the decision is unjust or prejudicial especially based on someone’s race, sex, age or having a disability. This can also include your mental health.

There may be an appeal process that you can follow after your request is refused, and your employer should advise you if this is the case. There is no legal right to an appeal; however, many employers will offer this. An appeal will allow you to put forward your flexible working request again; you can demonstrate that you know your rights, and in the event you decide to take things further, it will show that you gave your employer every opportunity to re-evaluate their decision. If you do appeal, it is good practice for someone more senior and preferably independent to chair the meeting and they should have the power to overturn the original decision.

If an employer does not handle a request in a reasonable manner, you could use your workplace grievance procedure. You can usually make a formal grievance complaint if you have tried to address the issue with your manager and you are not satisfied with their response. You should be able to find your company’s grievance procedure in writing. This may be found:

• In your employment contract.
• In your company handbook.
• From human resources (HR).
• On your company intranet site.

If you have decided to use your workplace grievance procedure, then you should:

• Write a letter to your employer stating the details of your grievance.
• Have a meeting with your employer to discuss the issue.

You should then be able to appeal your employer’s decision should you wish to do so.

After following your workplace grievance procedure, if you are still unhappy with how it has been handled you can take your employer to an employment tribunal. You can make a claim to an employment tribunal if you think you have been treated unlawfully, if you feel they have breached the statutory procedure or if the refusal is unlawful discrimination.

You will usually have to make the claim within 3 months of your flexible working request being rejected. The tribunal is independent and will hear from both you and your employer before making a decision. The tribunal will take into account whether the permitted reason criteria have been met and also will take into account the ACAS guide of good practice, although these are not mandatory.

If you are claiming for discrimination under the Equality Act, you should ensure you follow the grievance procedure before going to a tribunal as this could reduce any award a tribunal makes. If your employer treats you unfairly in relation to your request, you may also have experienced unlawful discrimination under the Equality Act. Parenting or caring roles are not protected under the Equality Act; however, parents and carers may experience discrimination on the basis of disability, sex and marriage. If you request to work flexibly because of your disability, you may have a claim for failure to make reasonable adjustments if your employer refuses your request.

Tribunal claims can be lengthy – taking 6–12 months from start to finish – costly and it can be a stressful process. It is always best to attempt to resolve the issue with your employer. You must tell ACAS first before making a claim to an employment tribunal about a workplace dispute. ACAS is not part of the tribunal process and will not discuss any part of the matter with the tribunal. If you feel that you may have a claim, they can be contacted on their helpline, 0300 123 1100.