Employers guide to flexible working. Part 2: What are the legal requirements?

So are you ready for the second installment of our guide to the ins and outs, why and wherefores of flexible working for employers? We hope so because this week’s a biggy. Brace yourself.

In case you missed it our first post in the series explained the flexible working boom and described the different options, but this wouldn’t be your go-to guide to all things flexible without a trip through the legal ins and outs.

So this week we’re giving you the low down on the new(ish) legal rights your employees have to make a request for flexible working conditions and what your obligations are. There’s no getting away from it, you need to know this stuff.

The legal low down

Until last year only employers with children under the age of 17 – or disabled children under 18 – or with responsibilities as a carer had the right to request flexible working. But all that has changed.

The Children and Families Act that came into force in June 2014 extended the right to request flexible working, for any reason, to all employees with 26 weeks continuous service.

So as an employer you really need to familiarise yourself with these rights and your responsibilties. Recent research suggest that 8.7 million employees – two in five – would like some form of flexibility.[i] A request to work from home, or work flexible hours could land on your desk tomorrow.

Who qualifies?

  • Anybody with 26 continuous weeks service has the right to request flexible working.
  • This applies to both full-time and part-time employees but does not include agency workers or directors who are not also employees.
  • A staff member who has already made a request is not entitled to make another request for 12 months.
  • Employees with ‘employee shareholder’ status who have specifically. agreed to give up various employment rights in return for shares do not have the right to request flexible working.

Requesting flexible working

The employee must make the request in writing – either by email or in a letter.

The request must include:

  • the date of the request;
  • that they are making a statutory request;
  • what change in working conditions they are seeking and when they want that change to take effect;
  • how they think flexible working will affect the business and how they think that could be dealt with;
  • a statement declaring whether they have previously made a request for flexible working and when that was.

Handling requests for flexible working

You must consider requests for flexible working in a ‘reasonable manner’, can only refuse the request for business reasons and the process, including any appeals, must be dealt with within three months.

We suggest all employers read the ACAS code of practice for handling requests in a reasonable manner and develop their own written policy for handling flexible working requests. The ACAS code has statutory force and will be taken into account by any employment tribunal considering relevant cases.

So what should you do?

  • Arrange a meeting with the employee as soon as possible and allow they to bring a colleague for support if they wish.
  • Weigh up the benefits of granting the request against any adverse affects the change may have on your business including any costs that may be incurred.
  • Let the employee know your decision as quickly as possible.
  • Allow the employee a chance to appeal the decision. While this isn’t a statutory requirement if the employee complains to an employment tribunal this would be taken into account.
  • If you accept the request, you should discuss when the change should take place and make any necessary changes to their employment contract.

Reasons for refusing requests

You can negotiate changes to what the employee is proposing or agree a trial period, but you can only refuse a request to work flexibly for clear business reasons. Inconvenience or the fact no-one else has had similar benefits before are not good enough reasons to turn down a request. The reasons a request can be denied are set out in the legislation:

  • the burden of additional costs;
  • inability to reorganise work amongst existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • detrimental effect on ability to meet customer demand;
  • insufficient work for the periods the employee proposes to work;
  • planned structural changes to the business.

So think carefully before you respond. If you do turn down the request you must explain the reason to the employee and how it applies to their application.

When considering competing requests for flexible working the guidance makes it clear that employers are not required to make a judgement about the most deserving case, but to consider each request on the merits of the business case, and the possible impact of refusing the request.

However employers must be careful not to discriminate against someone in a protected group. For instance refusing a request from a new mother who wants to work part-time in favour of someone else could be seen as indirect sex discrimination.

Get prepared

  • As suggested earlier, develop a policy for handling requests and also review and amend your flexible working policy if you have one. If you don’t, write one.
  • Review your home working policy and procedures.
  • Do your managers need training? Most employees will approach their line manager to request a change in working conditions so these individuals need to be aware of the policies, and be able to handle requests sensitively and supportively.

We know that was quite a lot to to take in. We warned you it was a biggy. We wouldn’t be surprised if after reading all that you’re left wondering what’s in it for you and your business? Well stick with us, because next week we’ll be explaining all positives that flexibility working can bring to your business.

Additional resources:

ACAS – The right to request flexible working

Gov.uk – Flexible working

Law Donut – The law on flexible working

[i] A flexible future for Britain, Timewise 2014

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