The number of people working ‘flexibly’ in the UK is on the rise, with research showing that almost nine in ten of the UK’s full-time workforce either work flexibly or would like to do so. There are various reasons why someone might want to alter their working pattern which include family commitments, illness or a desire to pursue interests outside of work.
A flexible working request (FWR) might involve a change to part-time hours, compressed hours, annualised hours or homeworking.
Many employers report the benefits of a positive approach to flexible working, such as increased employee engagement and satisfaction, the ability to attract and retain key members of staff and potentially cutting costs and reducing job losses.
Increasingly, the
ability to work flexibly is becoming a key criteria for prospective
employees.
The Law
The Employment Rights Act 1996 contains a statutory right for employees to make a flexible working request. To qualify to do so, the employee must have 26 weeks’ service at the date the request is made although employers may wish to discuss informal requests to work flexibly at any stage. An employee can only make one FWR in any 12-month period.
A FWR should:
- be in writing;
- specify the changes the employee is seeking; and
- explain what effect, if any, the employee thinks the change would have on the employer and how it can be dealt with.
An employer is required to deal with requests in a reasonable manner and provide a decision within 3 months (or longer if both parties agree). A FWR may be rejected for one or more of eight business reasons set out in the legislation, such as the burden of additional costs, the impact on ability to meet customer demand or detrimental impact on performance.
Handling the FWR
When faced with a FWR there are a few things that employers should keep in mind when handling the request and coming to a decision:
- ACAS Guidance recommends that on receiving a FWR, the employer should arrange to discuss it with the employee. Even if the employer is minded to grant the request, a discussion can be helpful to ensure that the proposed change is the best solution for both parties. It is good practice for employers to introduce a policy on flexible working which covers how employees can make a request and how the request will be dealt with.
- Why has the request been made?: Extra consideration may be required where the FWR is made by employees suffering from illness. In particular, employers should consider whether the request can be categorised as a FWR or whether it falls under the duty to make reasonable adjustments under the Equality Act 2010. If so, the obligations on the employer change as does the level of risk. If the request is not granted, the employer cannot simply rely on one of the eight business reasons for saying no to the flexible working request. As a minimum, it is advisable to seek medical information as part of the employer’s considerations.
- Exploring alternatives and trial periods: It may be sensible to trial the proposed changes to assess the impact on the business and whether they can work in the long-term. Rather than having a disgruntled employee, is there a possibility that the request can be accommodated in part or with some adjustments rather than outright reject the request?
- The reasons why: When rejecting the request, the employer should be prepared to clearly explain the reasons why and ensure that these stand up to any criticism if the decision is appealed. Employers should consider carefully which of the eight statutory reason they are relying upon as the basis for their refusal as well as any potential discrimination issues. For example, if the request has been made in order to accommodate childcare commitments, employers should consider the risks of any potential sex discrimination claim prior to rejecting a request.
If you would like assistance or require further information, please get in contact with our Employment Law team.
