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Guidance on flexible working

Posted on 10th May 2021 in Employment

Posted by

Stephen Jennings

Partner and Solicitor
Guidance on flexible working

As a result of coronavirus the way many of us work and live has been radically changed. Many people have enjoyed the flexibility of working from home, including avoiding a commute, setting their own hours and increased time with their family.

Employers can expect to see more employees requesting new and flexible working patterns as and 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?

Anyone can make a request but the specific statutory right to do so is more limited. Only employees with 26 weeks' continuous service are normally entitled to request flexible working under the statutory procedure. However, if an employee has already made a statutory flexible working request, they cannot make another statutory request for 12 months.

Furthermore, workers (that is, anyone who is not an employee) cannot make a statutory request to work flexibly. For example, agency workers, self-employed contractors, consultants, and company directors will be excluded if they are not also employees.


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?

A statutory request must be in writing, must be dated and must include a statement that it is a statutory request. It must also provide an explanation of how the employee thinks flexible working might affect the business and how this could be dealt with. It must also indicate whether a previous application has been made.  Once such a request is received, employers must consider it in a 'reasonable manner', which usually involves holding a meeting with the employee, properly considering the request and offering a right of appeal. Unless otherwise agreed by the employee, the employer must reach a decision about a flexible working request within three months.


Does an employer have to allow employees to work flexibly?

In short, no - but an employer may only refuse a statutory request for flexible working for a specific business reason:

  • 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.

Employers should also consider the risk of a discrimination claim if a request is refused unreasonably e.g. if a request made to allow for childcare is refused, a claim for indirect sex discrimination might be brought. This is the case whether the flexible working request was made in accordance with the statutory procedure or not.


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 other 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 simply refuse the request to see if a compromise is possible.


What if a request, once granted, doesn’t work out?

Where a flexible working request is agreed, it usually leads to a change in contract terms which cannot easily be reversed. For this reason some employers who are uncertain about whether a particular request can be accommodated accept a request subject to a trial period which can be brought to an end if it proves unsuccessful. It is important in this case to be very clear with the employee who will determine whether the new arrangement has been successful (the employer is likely to want to reserve this right) and what the implications of this will be (for example whether previous arrangements are automatically revived, or whether there will be a further attempt to find a compromise).


Find out more

For any other help or support please contact our dedicate Employment Law team who are best placed to advise you on employemt, employees and floexible working.

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