The right to request flexible working came into force on 6 April 2003. It afforded the right to qualifying employees to request flexible working arrangements in order to care for certain children and adults.
From 30 June 2014, all employees with at least 26 weeks’ continuous employment will be able to make a request for flexible working, under the statutory scheme, for any reason. It will no longer be limited to those with caring responsibilities.
The employee must make their request in writing and can only make one request under the statutory regime in any twelve month period, the time being counted from the date on which they make their request. An eligible employee may request a change to their employment terms if the change relates to: a change to the hours they work; a change to the times when they are required to work; a change to the place of work (as between the home and any of the employer’s workplaces).
There are a wide range of possible work patterns and, in fact, very few limits as to what an employee can request by way of variation.
An employer who receives a flexible working request under the statutory scheme has three months to consider the request, discuss with the employee (if appropriate) and notify the employee of the outcome. The employer must deal with it in a reasonable manner and notify the employee of its decision within the three months allowed.
There is no statutory definition of ‘reasonable manner’, but the ACAS code and ACAS guide provide some guidance. It suggests that the employer should meet the employee as soon as possible after receiving their request. Additionally, under the regime in force until 30 June 2014, the Flexible Working (Procedural Requirement) Regulations 2002 provides for an employee to be accompanied at meetings by a colleague. Whilst Procedure Regulations will be revoked, the ACAS Code recommends that, in order to deal with requests in a reasonable manner, employers should continue to allow the employee to be accompanied.
The employer may still refuse a request for one or more of the eight reasons set out in the existing legislation:
- The burden of additional cost
- Detrimental effect on ability to meet customer demand
- Inability to re-organise 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 legislation does not expressly require an employer to allow an employee to appeal against the rejection as a flexible working request. However, the ACAS code suggests that employees should be allowed to do so - this may go towards evidencing that the employer dealt with the request in a ‘reasonable manner’.
The employee can complain to a tribunal if the employer:
- fails to deal with their application in a reasonable manner;
- fails to notify them of the decision on their application within the decision period;
- fails to rely on one of the statutory grounds when refusing an application;
- bases its decision on incorrect facts;
- or treats the application as withdrawn when the grounds of entitling the employer to do so do not apply.
When deciding complaints brought with respect to the statutory scheme, Tribunals must take the ACAS code into account.
Where a claimant succeeds at tribunal, it must make a declaration to that effect and 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 for compensation to be paid by the employer to the employee, of such amount as the tribunal considers just inequitable, up to the permitted maximum, which is eight weeks’ pay. The statutory cap on a week’s pay applies.
Bear in mind also that if an employee is refused flexible working and it relates to a protected characteristic, they may have a successful discrimination claim under the Equality Act 2010. The most common claims in this area are sex and disability discrimination.
Tips for employers
- Employers should consider introducing a policy or amending their existing policy for handling a request to work flexibly. This will help ensure consistency when handling requests and can also make it easier to communicate information or the right to request in a transparent manner to all employees.
- Employers should be consistent in their assessment of requests, particularly if they receive a number of requests from people in the same team or department.
- Line Managers should be supportive and encourage the pursuit of requests in accordance with the employer’s procedures. A negative or discouraging attitude could increase the likelihood of an employee making a discrimination claim.
- Be mindful not only of the statutory right to request flexible working but also requests from those not covered by the scheme. They may have other statutory protections that mean any flexible working request should be carefully considered:
- for example, an employee with less than 26 weeks’ continuous service who wishes to work part time due to childcare arrangements. If her request is rejected and she is required to work full time this could be indirectly discriminatory (unless objectively justified) because the requirement (to work full time) disadvantages women as a group, since women bear a greater part of domestic and childcare responsibilities than men and are more likely to want/need to work part time.