What is Flexible Working?

Flexible working arrangements are on the rise in the UK and are now popular with many workers. According to Statista, the number of people working part-time in the UK has increased over the last couple of decades, from 6 million in 1992 to 8.7 million in 2019.

However, we all know what came next – the Covid-19 pandemic. We often do not think that there are many positives to come out of it; however, one positive is the effect that it has had on flexible working. Homeworking became the norm for many people.

From 1998 to 2020, those who worked mainly from home increased by almost three million – from 2.92 million to 5.64 million. It wasn’t only becoming more normal for people to work from home, but increased flexibility in when people work was also on the rise, with over 3.9 million Britons taking advantage of flexitime in 2021.

What is flexible working?

Flexible working is essentially any working pattern that is different from the person’s usual working pattern.

There are many ways in which someone can work flexibly such as:

• Reducing hours from full-time work to part-time.
• Changing the hours they work from weekdays to weekends.
• Changing working hours to suit care requirements or school hours, for example.
• Working compressed hours, where a person’s full-time hours are condensed into four working days rather than five, for example.
• Flexitime – Where work start and finish times are flexible as long as core hours are agreed and met.
• Working remotely for part or all the working week.
• Job sharing – Where two people fulfil a full-time role but share out the job between them with agreed proportions.
• Staggered hours – Where the start and finish times are different each day.
• Annualised hours – Where someone’s working hours are organised over the course of a year rather than on a weekly or monthly basis.
• Term-time only work.
• Time off in lieu.
• Phased retirement – Gradually reducing one’s working hours or working days in the last few months or years before retiring.

Of course, not all the ways of flexible working will suit every person or every profession. For example, teachers or nurses requesting flexible working will likely not be permitted to work from home as it isn’t practical.

What do you need to do if you want flexible working?

Flexible working is now increasingly appealing to many people of working age. The pandemic allowed workers to realise the potential for some flexibility in working. Many parents had to home school their children whilst working from home, which meant that often they completed their work earlier in the mornings or later into the evenings.

Whilst this was an incredibly difficult task for many, now that children are back in school, the flexibility of working in such patterns appeals to many. So, what does someone who wants to request flexible working need to do?

Firstly, there are two ways of approaching your employer to request flexible working: a statutory flexible working request and a non-statutory flexible working request. A statutory request is set out in law, meaning that there is a set process that must be followed when negotiating the request.

However, only certain employees can make a statutory request as certain conditions must be met:

• The employee must have been working for the employer for a period of 26 weeks of continuous employment on the date the application is made.
• The employee cannot be an agency worker unless returning from parental leave.
• The employee has previously made a statutory request for flexible working within the previous 12 months regardless of whether it was accepted.
• The employee is a shareholder, unless they are returning from parental leave in the previous 14 days.

If a worker doesn’t meet these criteria, they can still make a non-statutory request. However, there is no set process for this under the law. If you want to make a non-statutory request, many employers have a flexible working policy already in place, so reading this would be a good place to start.

What is your flexible working arrangement?

Any employee considering requesting flexible working should first establish what their proposal could be as well as think about how their employer generally approaches flexible working.

Aside from this, someone considering working flexibly (or requesting to do so) needs to think about their temperament and how suited they are to differing work patterns as well as any financial implications that could arise as a result of such a request.

The employer’s approach

If you are thinking about requesting a flexible working arrangement, it is worth researching whether any other employees have made similar requests and, if so, what the outcome and flexible working arrangements were. With this knowledge, you will be better armed to request flexible working in a way that will suit your employer’s approach as well as meet your needs.

The employee’s needs

You may not realise it, but personality plays a big part in your ideal working pattern. Many people are much more productive in the mornings, preferring to get up and set to work before the typical 9 am. However, the opposite also applies, with many workers having much more productivity in the evenings.

Do you like the solitude of homeworking? Or do you prefer the busyness of the office? Are you more productive in your own environment, saving you the time and stress of a commute, or do you hate working around family members and pets? Thinking about your own needs and working habits is essential before putting forward a flexible working request as you need to ensure that the request you make will actually suit your working style.

Applying for flexible working

As mentioned, if you have been working for the same employer for a continuous period in the last 26 weeks, you can make a statutory request for flexible working. If not, you can make a non-statutory request.

If you’re unsure which kind of request to make, here is a helpful table:

Making a statutory flexible working request should follow these simple steps:

1. An employee should write to their employer with their request.

2. The employer will consider the request and make a decision within three months (or another agreed timescale).

3. If the employer agrees, they will change the terms and conditions in your contract to reflect the flexible working pattern.

4. If the employer does not support the request, there may be an appeals process or complaints process to follow.

Writing to the employer

An employee requesting flexible working should write formally to their employer in an email or letter. Certain employers may have a procedure or form to fill in for this.

The letter or email should include:

• The date.
• A statement making it clear that it is a statutory request (if this applies).
• Information on how the employee wants to work flexibly and when they would like this new pattern to start.
• Supporting information on how their proposed arrangement may affect the employer/the business and how any issues could be circumnavigated. The employee could offer suggestions as to how their work would be completed if they reduced their hours, for example.
• A statement to offer reasoning behind the request such as if it is due to the need for reasonable adjustment due to a disability or if it is due to caring for a relative. This is not a compulsory part of an application, but it may help the employer understand the case and avoid any discrimination claims.
• A sentence to state if they have made a previous request and when this was.

If at any stage an employee wishes to withdraw a request for flexible working, they can do so in writing. Employers can also withdraw the application on the employee’s behalf if they do not attend two meetings to discuss their application or appeal without a good reason.

Non-statutory requests

If you are wanting to make a non-statutory request for flexible working, there is no usual set format to follow.

However, a letter should include:

• An explanation of the preferred flexible working pattern and the date on which the employee would like it to begin.
• Supporting information on how their proposed arrangement may affect the employer/the business and how any issues could be circumnavigated.
• An explanation as to why the employee is making the request. This is not vital, but it may sway the employer in the employee’s favour if they know the facts such as if a relative needs help with their care, for example.

With any kind of application for flexible working, the employee should also show flexibility if they wish their employer to do the same. For instance, an employee could propose three suggested changes to their working pattern and outline which they prefer and why.

This will allow the employer to look at more than one possible option for flexible working and will show willingness on the part of the employee to meet the employer halfway.

The employer is responsible for dealing with flexible working applications reasonably, especially statutory requests as these are protected under flexible working laws.

Employers should therefore assess the advantages and disadvantages of any application, hold meetings with the employee to discuss the flexible working request, and offer an appeal process should the employee not be satisfied with the outcome.

How to design a flexible role

For those considering flexible working, it is worth thinking about flexible roles that already exist in the company. For those that are already working flexibly successfully, asking their opinion on your proposals may be a good idea before broaching the bosses.

Here are some ideas to get you started when thinking about creating a flexible working pattern:

• Show good organisational skills and plan ahead.
• Ask colleagues for support and guidance and consider how your request may affect them.
• Offer flexibility in your proposals. The more flexible you are, the more flexible the employer may be.
• Be positive about your application rather than confrontational. You want those in charge to be supportive of your request.
• Be willing to offer solutions to any problems that arise.

Once you’ve considered the above, it’s time to think about your role flexibly.

Firstly, you should answer the following questions about your current arrangements:

• What is your current role and working pattern?
• How many hours do you work a week? Are the hours regular?
• Do you currently have any flexibility in your work?
• Where is your work based? Is it possible to work from a different location?
• Are you in a team?
• Do you need to meet face-to-face with clients or colleagues? How often?
• Do you work with members of the public?
• Are your current working arrangements not suitable due to your sex, age, race, disability, sexual orientation or beliefs?

In answering these questions, it may bring up some initial ideas about how you could design a flexible role.

Your suggested flexible working arrangements

In an ideal world, we’d all choose our perfect option for work. Whilst this may not be possible, what would you choose if you could? It’s important here to consider how some patterns of work suit some people more than others.

Think about:

• When is your most productive time of day?
• Do you prefer lone working or working with others?
• Is it possible to do some or all of your role away from the workplace (hybrid working)?
• Are remote meetings an option?
• Do you like to separate work from home?
• Are you able to meet deadlines easily away from the workplace?
• Can managers manage you effectively if working remotely?
• If you reduced hours, would you still try to complete the full-time role but on a reduced salary?

Once you have thought about these aspects and have an ideal working pattern in mind it is easier to work towards designing a role that contains at least some of these ideas.

Think about how you would design a role to suit your needs:

• Fewer hours and less pay versus the same hours but a flexible arrangement of hours?
• Would flexible starts and finishes be an option?
• A change of location, including working remotely fully or partially.
• Whether you would want a change to be permanent or temporary.
• Having fixed hours instead of a shift pattern.
• Taking a sabbatical or career break.

You should also think about potential barriers to the changes and predict what the employer’s difficulties may be. It is then time to come up with alternative suggestions that may meet both your and the employer’s needs.

After the application

After an application for flexible working, an employer must respond. If it is a statutory request, they must respond within three months or during the agreed time frame.

If they agree to the request, the employer will make changes to the terms and conditions of the employee’s contract effective from the date requested or agreed. The employer must also put this in writing. Once the request has been approved, the changes should be put in place no later than 28 days following the approval.

An employee should remain on the same pay grade as they were before the request and if the hours are different, they should be paid on a ‘pro-rata’ basis. Holiday entitlement and other benefits should also be on a pro-rata basis.

What happens if flexible working is refused?

The employer should inform the employee that their application for flexible working has been refused.

The employer must offer one of these reasons for this:

• Additional business costs that will be detrimental to the business.
• The work is not able to be reorganised amongst existing staff.
• It is not possible to recruit someone to do the work.
• The business will not be able to meet customer demand.
• The quality of work and business performance will be affected.
• The proposed working times do not have sufficient work.
• There are changes to the workforce planned.

If a request is refused, the employer should organise a meeting to discuss the refusal as soon as possible. It is important to realise that not all flexible working requests are successful.

Often, the reasons for refusal are valid and perfectly reasonable from the employer’s point of view. The employer must balance its business against the employee’s right to request flexible working.

However, there are times when employers may have acted unlawfully when it comes to refusing or not considering flexible working requests appropriately.

An employee could take further action, such as an appeal or a claim to an employment tribunal if any of the following apply:

• A reasonable request was outright rejected and no reasonable reason was given for the refusal.
• The employer did not follow the statutory procedure correctly, i.e. they did not make a decision within three months of the application or they didn’t give a suitable reason as outlined by the Employment Rights Act 1996.
• There is a case for discrimination based on one of the protected characteristics such as sex, race, sexual orientation, disability or religion.

The takeaway

Whilst flexible working is not a new thing, it is certainly on the rise as the statistics show. Flexible working can have many benefits for both employees and their employers, providing the balance is right. It also allows those with caring responsibilities or disabilities more choice when it comes to working.

Applying can be a daunting process and requests can be refused. However, most employers are giving increased consideration to flexible working requests thanks to the pandemic opening up our eyes to different possibilities.