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Flexible Working Q&A

Posted on 12th January 2023 in Employment

Posted by

Mai Mbye

Flexible Working Q&A

Who can make a flexible working request?

Anyone can make a request, but the statutory right to request flexible working is more limited and applies only to employees who have at least 26 weeks’ continuous employment (as at the date of the request) and who have not made a statutory request in the last 12 months.

Why is the statutory right to request flexible working important?

Because requests made in line with the statutory right have certain advantages for the employee:

·        The employer must deal with the request in a reasonable manner

·        The request must generally be dealt with within three months

·        The employer may only refuse the request for one (or more) of a limited number of reasons

How should a statutory request be made?

The request must be in writing, clearly stating that the application is made under the statutory procedure. The date of the request should be included together with details of any previous applications made under the statutory scheme. The application will also need to set out the details of the proposed arrangements including the proposed start date. The request should provide an explanation of the potential impact of the proposals on the employer and how this can be dealt with.

What changes can an employee request?

A flexible working request may propose:

·        A change to the number of hours worked (e.g. a reduction in working hours or working part time)

·        A change to the times when the employee is required to work (e.g. different start and / or finish times)

·        A change to the place of work (as between the employee’s home and any of the employer's workplaces)

Can a flexible working request be refused?

In some cases, yes, but the employer has to properly consider the request and cannot simply reject it out of hand.

When a flexible working request is made in line with the statutory scheme, employers must deal with the request in a reasonable manner. This requires employers to follow a reasonable process which includes meeting with the employee to discuss the request and considering the request carefully and fairly – looking at the pros and cons for both parties.

Whilst there is no absolute right for an employee’s request to be accepted, employers can only refuse for one of a number of permitted reasons:

  • The additional costs.
  • Detrimental effect on ability to meet customer needs.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Decreased quality.
  • Diminished performance.
  • Inadequate workload during employee's reduced hours.
  • Planned structural changes.

In addition to the statutory rules, an employer which is contemplating refusing a request should also be alive to the possibility of a discrimination claim and may wish to seek specific advice about this.

What happens if the requested is accepted?

Once the changes have been agreed in principle, the employer should set out the new working arrangements in writing. There is also a requirement to formalise any changes by incorporating the new terms into the employment contract.

Are there any changes expected for 2023?

The government has announced that it will be taking action to make the right to request flexible working fairer and more inclusive for individuals. The proposed changes include:

·        The right to make a statutory flexible working request from day one (removing the requirement to have at least 26 weeks’ service).

·        Employers will have only two months to respond to the request instead of the current three months.

·        Employees will be able to make two statutory flexible working requests in any 12-month period as opposed to one.

·        Before declining a request, employers will be required to consult with employees first to explore other options.  

·        Employees will no longer be required to set out the potential effects that their flexible working request will have on the employer (removing the burden from employees and putting the onus employers to determine this).

Although it is anticipated that these changes will come into force this year, the government has not yet provided a date. Whilst we are not recommending any particular steps to be taken at the moment, employers should be aware of the planned changes.  

How we can help

If you would like more advice on flexible working requests and how to deal with them, please get in touch with our employment team. 

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