As working restrictions ease and employees return to the workplace, the issue of flexible working is a hot topic for thousands of people across the UK. Working from home is now seen as an acceptable practice and many employees are looking to change their working practices to be more and better suit their lifestyle and commitments.
But how can an employee go about changing their working hours and location and what can and should an employee expect when submitting a flexible working request? Can an employer refuse a flexible working request and where does the law stand?
Simon Roberts, Senior Associate at DAS Law, looks at what employees need to know.
When and why can I make a flexible working request?
There does not need to be a reason for your request so you can make one just to make your working more manageable or convenient.
The criteria to be eligible to make a flexible working request are that you must be an employee, have at least 26 weeks continuous service and not have made a previous request in the last 12 months.
This means that the right does not apply to all workers, however it is worth checking for any internal policy that may be more favourable than the formal requirements.
The Government is currently considering removing the service length requirement, therefore making the ability to make a request; this has not been formally introduced yet but is something to keep an eye out for.
How to make a flexible working request
First check to see if your company has any flexible working policy as it will be helpful to be aware and to follow this.
Normally, the request should be in writing to your employer. It should be dated and include the fact that it is a formal flexible working request under the statutory framework. It should also detail the change that you would like to make and from when you would like it to start, as well as addressing the effect that any change would have on the employer and how this could be dealt with by them, the more detail the better but the employer also have an obligation to deal with the request in a fair manner and give a reason if they refuse.
Including more information on the request is also suggested by ACAS, the workplace expert. This should include the date of any previous request to show it is outside of a 12-month period. Cover any benefits to the business and yourself in order to ‘sell’ the change to your employer, this can include the benefit to your colleagues such as having more space or being able to offer a job share. It can also help to cover the request is to help deal with any protected characteristics such as maternity or disability.
What will happen when I make the request?
The employer will have 3 months to deal with a request, although you can agree to extend this. They must also deal with the request in a reasonable manner. The employer will likely arrange a meeting immediately to get an idea of what you are looking for and discuss the request, allowing accompaniment by work colleague. The employer will then consider the request. This should be done carefully in order to assess the benefits and ensure that it is dealt with in a non-discriminatory way.
The decision should be given as soon as possible and confirmed in writing, either confirming the changes that will be made or the reason that the request has been refused for.
A trial period does not have to be offered but is an option that can be useful for both parties as a good opportunity to see how the change would affect the business in the practice as opposed to on paper. A trial period would be by agreement and should set out the period and terms to review.
Can a request be refused?
The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation s.80G of the employment rights act. These reasons are:
• The 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 quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes.
What can you do if your flexible working request is refused?
First you should review the reasons as to why the request was declined and look to see if you can appeal the decision. This is normally handled by a chairperson not originally involved so is independent. If the outcome is still that the request is declined, then you may have grounds for a complaint to the employment tribunal. Always bear in mind that the grounds for refusal are fairly wide so taking legal advice may be needed.
It would be important to identify whether it is a procedural failing, such as exceeding the three-month decision period, for refusing for a non-statutory reason or failing to deal with the request in reasonable manner. You may want to consider other employment rights that may be impacted by the declinature. If you believe that this has placed you at a detriment because of a protected characteristic, this would be considered discriminatory and you may want to explore bringing a discrimination claim. If an employer acted in such a way as to make your position untenable you should look to take legal advice on your situation.
Bear in mind that most employment claims have a short time limit of 3 months, which means that you must act promptly.