Flexible Working Time – How to deal with it?
What is flexible working?
Flexible working is a way of working that suits an employee’s needs, e.g. having flexible start and finish times, or working from home.
Under the Law, employees have the legal right to request flexible working – not just parents and carers. This is known as “making a statutory application”.
Who is entitled to flexible working?
Employees who have gained 26 weeks or greater service have the option to request flexible working. By flexible working, it is meant a right to make such a request, not necessarily to be granted the request.
The old law meant that this option was only available to specified individuals who;
- – Have children under 17 or
- – Have children with a disability under 18 or
- – Care for an adult dependant
Since June 2015, employees have gained a statutory right to submit a request regardless of the above.
Each such request should be looked at on its own merits. Such application can only be made once in a 12-month period.
How should such a request be made?
A request from an employee under the Employment Rights Act 1996 and regulations made under it must be in writing and must include the following information:
- The date of the application, the change to working conditions the employee is seeking, and when they would like the change to come into effect.
- What effect the employee thinks the requested change would have on their employer and how, in their opinion, any such effect might be dealt with.
- That this is a statutory request and whether the employee has made a previous application for flexible working, and if so, the date of that application.
Once such a written request is received, it must be considered.
An employer should arrange to talk with the employee as soon as possible after receiving the request. If it is intended to approve the request – a meeting is not needed.
Employers are only obliged, by law, to deal with requests from employees who have followed the correct statutory process. If it has not been followed, an employer is not obliged to deal with the request.
How should the request be dealt with?
An employer is obliged to consider such a request objectively and in a “reasonable manner”.
Examples of handling requests in a reasonable manner include:
- assessing the advantages and disadvantages of the application
- holding a meeting to discuss the request with the employee
- offering an appeal process
Unless an extension is agreed, an employer must notify the employee within 3 months of a request being made. The decision should then be communicated to the Employee by an agreed method. An employer must provide a clear business reason for any rejection.
Can an Employer reject such a request?
A rejection can be made if there is:
- the burden of additional costs
- a detrimental effect on an ability to meet customer demand
- an inability to re-organise work among existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- an insufficiency of work during those periods the employee proposes to work
- planned structural changes (for example, where the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans)
Going to an Employment Tribunal?
Employees can complain to an Employment Tribunal if the employer:
- didn’t handle the request in a ‘ reasonable manner’.
- wrongly treated the employee’s application as withdrawn
- dismissed or treated an employee poorly because of their flexible working request, e.g. refused a promotion or pay rise
- rejected an application based on incorrect facts
An example of “other” is if there is an unjustified refusal of a flexible work request on the grounds of indirect sex discrimination.
A very common example of this, if there is a provision, criteria or practice (PCP), such as full-time working, which applies to all employees as a whole. The PCP would place females at a particular disadvantage compared to males as there is a tendency for females to work part time due to child care. An employer would need to show that the PCP (e.g. full-time working) is justified bearing in mind your specific requests.
Change to contract
If an employee approves the request, there is a permanent change to the employee’s terms and condition, and there will be no right to return to the original terms in future, unless agreed otherwise.
If you have any questions on the above, or require any specialist Employment Law advice please contact SR Law.
32 Bloomsbury Street, London, WC1B 3QJ
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