As an employer, you need to know about flexible working. Almost all employees with at least 26 weeks' service have the right to ask for flexible working. You must consider requests in a reasonable manner. You can only refuse a request for one of the eight business reasons allowed by the legislation.
This briefing covers:
- The different types of flexible working.
- Who qualifies to apply for flexible working.
- How to handle requests to work flexibly.
- What you need to do to introduce new working arrangements.
Flexible working is any working pattern other than the normal working pattern - it can involve changes to the hours an employee works, the times they are required to work or their place of work.
1.1 There are a number of working practices that involve changes to the hours and times worked:
- A flexitime arrangement requires employees to be at work during a specified core period, but lets them otherwise arrange their hours to suit themselves.
- With compressed hours, employees work the same hours over fewer days.
- With annual hours contracts, employers and employees agree they will work a given number of hours during the year, but the pattern of work can vary from week to week.
- Staggered hours contracts let employees start and finish work at different times.
1.2 Employees may request a job-sharing arrangement.
- This is where one job is shared between two people. They might work alternate days, half weeks, or alternate weeks, or one might work in the morning and one in the afternoon.
1.3 Shift work, part-time and term-time work also count as flexible work.
1.4 Flexible working may involve changes in the location of the workplace, such as working from home.
- Employees may ask to do some or all of their work from home. You will need to consider your health and safety obligations (see 4.3).
1.5 An employee may want a temporary change.
For example, an employee might want time off for a training course, to care for a sick relative or to take an unpaid sabbatical.
- It may be best to deal with this sort of temporary change informally.
2.1 Almost all employees with at least 26 weeks’ service have the right to request flexible working.
- This includes both part-time and full-time employees.
- Agency workers and directors who are not also employees do not have the right to request flexible working.
2.2 If an employee has already made a request, they are not entitled to make another request until 12 months later.
2.3 Employees with ‘employee shareholder status’ do not have the right to request flexible working.
- This only applies to employees who have specifically agreed to give up various employment rights in return for free shares in the business.
- Other employees who own shares in their employer are entitled to request flexible working.
3.1 The employee must apply in writing.
The application must include:
- Details of the change they are asking for.
- What effect they think the change would have on the business and how the business could handle it.
- The date the request is made and the date they would like the change to start.
- A statement that this is a statutory request for flexible working, whether or not they have made a request previously and if so its date.
3.2 You must consider the request in a ‘reasonable manner’.
- Arrange to discuss the request with the employee as soon as possible.
If the employee fails to attend two or more meetings (without a reasonable explanation), you may treat the application as withdrawn.
- Allow the employee to be accompanied by a work colleague if they want.
- Weigh the benefits of the proposed changes against any adverse impact on the business.
- Let the employee know your decision as soon as possible.
- Allow the employee a right of appeal.
Although you are not required to follow the code of practice, it is taken into account if the employee complains to an employment tribunal.
3.3 You can negotiate with the employee to agree changes to what they are proposing.
- If you are unsure what the impact on your business would be, you might suggest agreeing to the changes on a temporary or trial basis.
- You may want to agree in advance to review how any new arrangements are working after a specified time. You will then be able to make changes if necessary
3.4 You can refuse an application to work flexibly only if there is a clear business reason.
This must be one of the reasons set out by the legislation:
- The burden of additional costs.
- A detrimental effect on the ability to meet customer demand.
- An inability to reorganise work among other employees.
- An inability to recruit additional employees.
- A detrimental effect on quality.
- A detrimental effect on performance.
- Insufficient work at the times when the employee proposes to work.
- Planned structural changes.
3.5 You must reach your decision within three months.
- This deadline can be extended if the employee agrees.
3.6 If you refuse the application, the employee may want to take further steps.
Or, you might encourage them to use a formal grievance procedure. This will also be quicker than involving external parties.
This might be someone from Acas or some other mediator or conciliator.
They will try to resolve the problem in an informal manner by mediating discussions between you and the employee.
- Try to deal with the problem internally. An informal discussion between you and the employee may clear up any misunderstandings.
- If it is still not possible to resolve the dispute, the employee may decide to involve an external third party.
3.7 In some circumstances, the employee may decide to make a formal complaint to an employment tribunal or to the Acas arbitration scheme.
You can be ordered to reconsider the request and also to pay compensation. The amount payable will be decided by the employment tribunal or the Acas arbitrator and will be limited to a maximum of eight weeks’ pay. Each week’s pay is currently limited to £479.
- The employee can make a claim if you fail to consider the request in a reasonable manner or to make a decision within three months.
- An employee may be able to claim discrimination. If a discrimination claim succeeds, compensation is not capped.
Once you have accepted a request for flexible working you may need to make some changes.
4.1 You will need to amend the employee’s contract of employment.
- You may want to agree a trial period.
4.2 If the new arrangement changes the number of hours worked, you will need to amend the employee’s pay and holiday entitlement.
4.3 If the employee will be working from home, health and safety requirements will still apply.
An initial risk assessment must be carried out although this can be done by the employee. Areas to consider are:
- The seating and layout of the employee’s computer workstation.
- Electrical equipment. Has it been tested and certified?
- Make sure there are no trailing extension leads.
- Adequate lighting levels, ventilation and room temperature.
Give employees simple, specific health and safety advice and record what has been done.
4.4 Consider the impact of the changes on other employees.
- If an employee will be working fewer hours, make sure you have adequate cover in place. Other employees may become resentful if their workload increases.
- You should inform other employees as early as possible.
- You also need to make sure work is allocated fairly. For example, in a job share you need to make sure that both parties have equal responsibilities.
4.5 Make sure you are consistent in your approach. Keep records of who has applied to work flexibly, and what your response was. Monitor and evaluate how the new arrangements are working so you can put changes in place if necessary.
In general, the same legislation applies to employers offering flexible working patterns as to those adopting more conventional arrangements.
5.1 The employee is protected against dismissal or constructive dismissal under the flexible working rights.
- You must not dismiss an employee or treat them less favourably because they have applied to work flexibly or made a complaint to an employment tribunal, or because they intend to.
- In such a case, the qualifying period of employment is waived and dismissal will be classed as automatically unfair.
5.2 When considering flexible working requests, make sure this does not amount to discrimination.
For example, you might face a claim of discrimination if:
- You treat requests differently depending on a ‘protected characteristic’ such as the employee’s age, gender or marital status.
- You indirectly discriminate, for example refusing a request from a new mother without an objective justification.
- You refuse a request for flexible working from a disabled employee, when allowing flexible working would be a ‘reasonable adjustment’ to ensure the employee isn't unfairly disadvantaged.
5.3 Fixed-term and part-time employees are legally entitled to be treated ‘no less favourably’ than their permanent, full time colleagues.
- You must be able to objectively justify any different treatment.
5.4 People who work on annual hours or term-time contracts are protected by the working time and minimum wage regulations, just like full-time employees.
5.5 Employees can also have unpaid time off.
- All employees are allowed unpaid time off to deal with an emergency involving a family member or dependent.
- Employees with at least a year’s service may be entitled to parental leave. This applies to parents with children under the age of 18. It also applies to parents who have adopted a child as long as the child is still under the age of 18.
For each child, unpaid parental leave can be up to four weeks a year subject to an overall maximum of 18 weeks.