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. The government has committed to making it a 'day one right'.
You need to understand your obligations to consider flexible working requests in a reasonable manner. You should also be aware of the legal issues to consider when employees start working flexibly.
1. What is flexible working?
Different working practices can 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 number of 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.
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.
Shift work, part-time and term-time work also count as flexible work
Flexible working may involve changes in the location of the workplace
- For example, employees might do some or all of their work from home. You will need to consider your health and safety obligations (see Moving into flexible working).
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.
Flexible working can have a number of business benefits
- Flexible working patterns may attract employees to your company. Having a flexible approach will also help you retain existing staff.
- It can help to reduce employee turnover.
- It may boost employee morale and commitment.
- The introduction of more flexible working arrangements can reduce absenteeism.
- It has been proven that flexible working provisions can lead to noticeable improvements in employee productivity.
The requests you receive from individuals will often involve forms of flexible working tailored to their specific circumstances. These don't necessarily entail a reduction in the total hours worked.
Parents may wish to work hours that let them work around the school run
- This can also apply to other employees with responsibility for bringing up children.
A person who is caring for a disabled relative may need some sort of flexitime arrangement
- For example, to take the relative to medical appointments.
The parent of a young baby may need flexibility
- For example, allowing them to work from home at short notice
An employee may want their work to fit better with personal priorities or activities
- For example, a hobby.
2. Who can request flexible working?
Almost all employees with at least 26 weeks' service qualify
- 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.
The government has committed to giving workers the right to request flexible working from 'day one' of employment
Currently, an employee can only make one flexible working request every 12 months but this will be increased to two requests in any 12-month periosd
Contractual 'employee shareholders' do not qualify
- Employees with employee shareholder status have specifically agreed to give up various employment rights in return for free shares in the business. This includes giving up the right to request flexible working.
- Other employees who own shares in their employer are entitled to request flexible working.
3. Flexible working requests
The employee must apply in writing
The application must include:
- details of the change they are asking for;
- what effect they think the change could 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 they have made a request previously, and if so its date;
- secondary legislation will eventually remove the requirement for employees to explain how their flexible working request might be dealt with by their employer.
You must consider the request in a 'reasonable manner'
Acas publishes a code of practice on handling requests. Although you are not required to follow the code of practice, failure to do so will be taken into account if the employee complains to an employment tribunal. You should:
- 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.
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.
You can refuse an application to work flexibly only if there is a clear business reason to do so
This must be one of the reasons set out by the legislation, which are:
- 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.
You must reach your decision within three months although this will be reduced to two months once secondary legislation is passed
- This deadline can be extended if the employee agrees.
If you refuse the application, the employee may want to take further steps
- Try to deal with the problem internally. An informal discussion between you and the employee may clear up any misunderstandings.
- Or you might encourage them to use a formal grievance procedure. This will also be quicker than involving external parties.
- If it is still not possible to resolve the dispute, the employee may decide to involve an external third party.
- 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.
In some circumstances, the employee may decide to make a formal complaint
- They can complain to an employment tribunal or to the Acas arbitration scheme.
- 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.
- You can be ordered to reconsider the request and to pay compensation. The amount payable is decided by the employment tribunal or the Acas arbitrator and is limited to a maximum of eight weeks' pay (currently capped at £643 per week).
- An employee may be able to claim discrimination (see Other employment legislation). If a discrimination claim succeeds, compensation is not capped.
4. Moving into flexible working
Once you have accepted a request for flexible working you may need to make some changes.
You will need to amend the employee's contract of employment
- You may want to agree a trial period.
You may need to amend the employee's pay and holiday entitlement
- For example, if the new arrangement changes the number of hours worked.
Health and safety requirements still apply to employees working from home
Give employees simple, specific health and safety advice and record what has been done. 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?
- Making sure there are no trailing extension leads.
- Adequate lighting levels, ventilation and room temperature.
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 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.
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.
5. Other employment legislation
In general, the same employment laws apply to employers offering flexible working patterns as to those adopting more conventional arrangements.
You should also take account of some specific protection for employees working flexibly.
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 12-month qualifying period of employment is waived and dismissal will be classed as automatically unfair.
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 by 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 that the employee isn't unfairly disadvantaged.
Treat fixed term and part-time employees fairly
- 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.
Working time and minimum wage regulations still apply
- People who work on annual hours or term-time contracts are protected by working time and minimum wage rules, just like full-time employees.
Employees can also take other paid and unpaid time off
- All employees are allowed unpaid time off to deal with an emergency involving a family member or dependant.
- Employees with at least a year's service may be entitled to parental leave. This applies to parents, including adoptive parents, with children 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.
- Employees that lose a child under the age of 18 or suffer a stillbirth after 24 weeks' of pregnancy are entitled to take parental bereavement leave. The right applies from day one. Qualifying parents can also claim one- or two-weeks' statutory pay.
Employment law is complex and changes frequently. This factsheet reflects our understanding of the basic legal position as known at the last update. Obtain legal advice on your own specific circumstances and always check whether any relevant rules have changed.
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