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Flexible Working: Your Questions Answered

View profile for Alexandra Dean
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As a result of the coronavirus pandemic, the way we work and live has been forever changed. Many people have enjoyed the flexibility of working from home, including avoiding a commute, setting their own hours and taking care of their children.

Employers can expect to see more employees requesting new and flexible working patterns when we 'return to normal', so in this article, we look at some of the most common questions around flexible working.

Who can request flexible working?

Employees with 26 weeks' continuous service are normally entitled to request flexible working, regardless of whether they work full-time or part-time. However, if an employee has already made a flexible working request, they cannot make another request for 12 months.

Furthermore, workers (that is, anyone who is not an employee) cannot request to work flexibly. For example, agency workers, self-employed contractors, consultants, and company directors will be excluded if they do not have a contract of employment.

In what ways can an employee work flexibly?

The term flexible working covers several ways of working. Employees may ask for changes to working hours, their work location (such as working from home), or the times they work.

Is there a process that must be followed to request flexible working?

There are two types of requests that can be made for flexible working, a statutory request or a non-statutory request.

A non-statutory request has no eligibility criteria nor a limit to one claim per year, and may be decided on sooner. However, if the claim is refused, you will not be able to bring a claim to the Employment Tribunal on the basis of flexible working laws. There is no specific procedure for making a non-statutory request.

A statutory request is a formal request and includes some basic steps that must be followed. A statutory request is subject to the eligibility criteria and claim limit as explained above. Unless otherwise agreed by the employee, the employer should reach a decision about a flexible working request within three months. In the event that your application is refused, you may be able to bring a claim in the Employment Tribunal under the laws of flexible working.

A statutory application must be made in writing to the employer and meet basic requirements which can be found on the governments website. These include some of the following:

  • The application must be dated
  • You must state that the request is a statutory request
  • Proposed arrangements for flexible working e.g. what hours you would like to work
  • How you think this may affect the business
  • Whether you have made any previous applications for flexible working

Does an employer have to allow employees to work flexibly?

In short, no - but they must consider any request to work flexibly in a 'reasonable manner'. If a request is refused, the employer must tell the employee the request has been refused. An employer may only refuse a request for flexible working for a specific business reason; these are set out in legislation as:

  • Unacceptable additional costs.
  • An inability to recruit additional staff.
  • A negative impact on quality of work.
  • An inability to reorganise work among existing staff.
  • A negative impact on the ability to meet customer demand.
  • A negative impact on the performance of the employee, the team or the whole business.
  • Insufficient work available to do during the periods the employee proposes to work.
  • Structural changes to the business that have already been planned that would not fit with the employee's proposal.

Furthermore, recent tribunal decisions have highlighted that it is not unreasonable to put the interests of the business before the interests of an employee when making a decision about a flexible working request.

Can an employer allow some employees to work flexibly but not others?

Each flexible working request must be considered on its own merits, meaning that some requests may be approved, and some denied. You can decline a flexible working request where there is good business reason for doing so, including that too many employees are working flexibly at the same time. For example, if several employees from one department request to work from home at the same time, there may be no one around to cover certain tasks during business hours.

However, it may be better to discuss such conflicts with employees rather than to refuse the request. For example, suggest different working patterns or taking turns to ensure the business can run smoothly while accommodating flexible working patterns.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

For further information, please get in touch with our employment discrimination solicitors in Chelmsford, or fill in our online enquiry form for a quick response.