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Oct 2019

Flexible Working

Employees with at least 26 weeks’ continuous employment can make a request for flexible working for any reason and if an employee makes a flexible working request there is a procedure that employers must follow.

The employee triggers the procedure by making a written request. The employer then has a three-month decision period, which can be extended by agreement, within which to consider the request, discuss it with the employee and notify the employee of the outcome.

The employer must deal with the application in a reasonable manner and can only refuse a request for one or more of the eight reasons set out below.

It should be noted that only one request can be made in any twelve-month period.

An eligible employee may request a change to their employment terms if the change relates to; a change to the hours they work, a change to the times when they are required to work, a change to the place of work (as between their home and any of the employer’s workplaces). Whilst the right to request flexible working is generally viewed as a right to request a permanent change to terms and conditions there is no prohibition on an employee requesting a temporary change although in making a request they will need to state the duration of the desired change.

The request must; be in writing, dated, state that the application is made under the statutory procedure, specify the change sought and when they wish the change to take effect, explain what effect the employee thinks the change would have on the employer and how any such effect could be dealt with, state whether a request has previously been made and if so state when.

An employer who receives a request must deal with it in a reasonable manner, notify the employee of the decision within the decision period, only refuse a request on one or more of the following grounds:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes.

There is no statutory definition of what it is to deal with a request in a reasonable manner however the Acas Code makes recommendations on how an employer should deal with an employee’s request for flexible working.

Acas suggests that the employer should arrange to talk with the employee as soon as possible after receiving their written request and there appears to be nothing to prevent the parties agreeing to a trial period however the employee cannot insist on one although an employee may be able to argue that an employer should have offered a trial period as part of dealing reasonably with their request.

If the employer accepts the employees FWR the new working pattern will be a contractual variation to the employee’s employment and will be permanent unless otherwise agreed. The employer is obliged to issue a ‘section 4 statement’ within one month of the changes taking effect.

If an employer unreasonably refuses a FWR employers should be aware that the employee may have additional statutory protections, for example, under discrimination law, whereby an employee may bring a claim against their employer.

Whether you are an employee wanting to make a FWR or an employee who has received a FWR, our employment lawyers can help guide you through the process in order to avoid any potential disputes that could otherwise arise.

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