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Employment Law Services — Employers

Flexible working briefing: What every business needs to know

Guidance on responding to a flexible working request from an employee from 30 June 2014.

  • Who can make a request?

      The right to request flexible working is available to employees who have been continuously employed by a business for at least 26 weeks.

      Only one application can be made in any 12 month period.

      The right to apply for flexible working has been extended to all qualifying employees from 30 June 2014 notwithstanding they do not have carer resposibilities.

      The statutory procedure for delaing with a flexible working applicaiton has also been relaxed from 30 June 2014.

  • What kind of change can be applied for?

      The employee will need to make a written request for flexible working. In doing so, they must set out their proposed pattern of flexible working, the impact they believe it will have on the business and how they believe the business can accommodate it. The employee can request:

      • To change the hours they work.
      • To change the times they work.
      • To work from a different location (for example, by asking to work from home).

      There is a statutory procedure that a business must follow once it has received a flexible working request. You should take legal advice as soon as a request is received to ensure that all obligations are complied with.

  • Rejecting or refusing the request

      A business may have legitimate reasons for being unable to accommodate a flexible working request. If the business chooses to refuse a request, it must identify one or more of the following grounds as the reason for doing so:

      • It would have a detrimental impact on the quality of the business’ products or services.
      • There is insufficient work available during the times when the employee wants to work.
      • The business is planning structural changes to the organisation of the business.
      • The work cannot be re-organised among existing staff.
      • There would be a detrimental impact on the business’ performance.
      • The business is unable to recruit the additional staff that the employee’s proposal would require.
      • There would be a detrimental impact on the business’ ability to meet customer demand.
      • The burden of additional costs that would be incurred.

      The business should give a notice of refusal in writing, dated and stating which of the above grounds apply, and why. It should also give details of the appeal procedure.

  • Practical guidance for businesses when handling a request

      Follow the statutory right to request procedure

      When a request to work flexibly is received, the first priority for a business is to ensure that the time limits are met. Meetings and deadlines for responses should be diarised and, where appropriate, the HR department should be consulted.
      If a deadline cannot be met, make sure the employee is kept informed. It may be possible to reschedule a meeting and avoid any liability for a breach of procedure.
      Managers should be trained on operating the procedure and the business should consider putting a written procedure in place.

      A business now has 3 months to consider the request, discsuss it with the employee and notify the employee of the outcome.

      Demonstrate serious consideration of the request

      Consider all the issues raised by the employee as potential effects of the new work pattern and think about ways of mitigating those effects.

      Consult the employee’s line manager, and where relevant, affected colleagues.

      Think about alternatives, rather than only the initial request

      Although the initial proposal may be unacceptable to the business for sound commercial reasons, there may be other working patterns that may satisfy the needs of both parties. Alternative ways of meeting the employee’s objectives should be highlighted and considered.

  • Maintain consistency

      Make sure that flexible working requests are recorded, and preferably processed, in a way that ensures that decisions are made consistently.

      Where inconsistent decisions are made, the business should explain the inconsistency. For example, a business may refuse a request on the basis that organisational capacity for flexible working has been reached and granting any further requests would undermine the business.

      As all employees with the necessary qulifying period now have the right to apply to work flexibly it is more important than ever to ensure that there is fair and consistent decision making.

  • The decision

      Explain the decision and the reasons fully and clearly

      Although there are no guidelines on the content of a refusal to grant a flexible working request, an employee should always be given an explanation as to why a particular application cannot be accepted.

      Do not reject applications on the basis of a technicality

      Avoid rejecting a flexible working application on the basis of a technicality, for example, if the application is undated or made before the birth of a child. In these circumstances, the business should inform the employee of the technical fault and advise them to re-submit an emended application. When a valid request is then submitted, it should be considered afresh.