Today’s blog looks at the law and procedure on an employee’s right to request flexible working, your ability do so and how to do so.
Who can make a request for flexible working?
Did you know that you might be able to make a flexible working request to your employer if you want to:
- reduce your hours to work part-time
- change your start and finish time
- have flexibility with your start and finish time (sometimes known as flexitime)
- do your hours over fewer days (compressed hours)
- work from home or elsewhere (remote working)
- share the job with someone else
By law, you have the right to make a flexible working request if:
- you’ve worked for your employer for at least 26 weeks
- you’re legally classed as an employee
- you’ve not made any other flexible working request in the last 12 months
The right to a flexible working request applies in the same way if you’re:
- a parent
- a carer
- returning from maternity leave
It is also worth bearing in mind that if you’re a parent or carer, your employer might have other ways for you to take time off. For example, parental leave to look after your child or time off for dependants. Check your workplace’s policy.
What can you ask for?
You can ask for the change to be for:
- all working days
- specific days or shifts only
- specific weeks only, for example during school term time
- a limited time, for example for 6 months only
- Check your right to make a request
What must you Employer do once you have submitted a request?
If you have the right to request, your employer must:
- look at your request fairly, following the ACAS Code of Practice on flexible working requests
- make a decision within a maximum of 3 months
How do you make a request for flexible working?
A flexible working request must be in writing. There is no formal requirements but your request letter or email should say you’re making a “statutory flexible working request” and must include:
- the date you’re sending it
- the change you’d like to make
- when you’d like the change to start
- how any effects the change could have on your work or the business might be dealt with
- the date of any previous flexible working requests, if you’ve made any
- if your request relates to something covered by the Equality Act 2010, for example to make a ‘reasonable adjustment’ for a disability you have
It can also help to include:
- any benefits that the change could have to your work or the business (for example, cost-saving or doing shift times that others prefer not to do)
- any benefits to your co-workers (for example, if a co-worker would like a job share, too)
What happens after your request is submitted?
Your employer should set up a meeting to discuss your request before making a decision.
If you go to a meeting, it can help to talk about:
- the reasons you want the change
- how any problems with making the change might be dealt with
- any other options you might consider if the change is not possible
You can ask your employer if you can bring someone to a flexible working request meeting, for example, a co-worker or trade union representative.
There is no legal right to bring someone, so it’s up to your employer to agree.
Once your employer makes a decision
Once your employer has reviewed your request, they must let you know their decision. It’s a good idea to ask for the decision in writing.
They must make a decision within a maximum of 3 months of you making your request. If you do not get a decision within 3 months, you should raise the issue with your employer.
If your request is approved
If your employer approves your request, this will usually change the terms of your employment contract.
Your employer should put the approval in writing, including:
- the agreed change
- when the change will start
- how long the change will last, if for a fixed period of time
- a review date, if the change will be looked at to see how it’s going
It’s a good idea to make sure you get everything put in writing by your employer so there’s no confusion about what was agreed.
If the change affects anything that must legally be in your employment contract, your employer must put it in writing. They must do this within a month of the change taking effect.
This includes changes to your:
- working hours
- job location
- holiday entitlement
If your request is turned down
Your employer can turn down your flexible working request if there’s a valid business reason for doing so.
By law, your employer can turn down your flexible working request if:
- it will cost too much
- they cannot reorganise the work among other staff
- they cannot recruit more staff
- there will be a negative effect on quality
- there will be a negative effect on the business’ ability to meet customer demand
- there will be a negative effect on performance
- there’s not enough work for you to do when you’ve requested to work
- there are planned changes to the business, for example, your employer plans to reorganise or change the business and thinks the request will not fit with these plans
Appealing a decision to turn down a request for flexible working
If you want to appeal the decision you should initially talk with your employer if you feel the decision was wrong or unfair. It’s a good idea to do this informally at first.
It can help to:
- explain why you feel the decision was wrong or unfair
- share any information that was missed or not available when your employer made the decision
- share any evidence if the request was not handled reasonably (for example, they did not follow the ACAS Code of Practice on flexible working requests or their own policy)
- listen to your employer’s reasons for their decision
- suggest any compromises you are willing to make
If you want to appeal, you should do so as soon as possible, or within the timeframe that your workplace might have set in their policy.
Formally appealing in writing
You can also put your appeal in writing. Your letter or email should say:
- why you feel the decision should be looked at again (for example, there’s new information that might affect the decision)
- what you would like to happen next (for example, look at the new information and meet to discuss your flexible working request)
It’s up to your employer to decide if they’ll consider your appeal.
How long does an appeal takes?
If your employer decides to consider your appeal, they should respond as quickly as possible.
Your employer must consider your whole request (including any appeal) within a maximum of 3 months of receiving the original request. Your employer can ask you for more time to make a decision, but only if you agree.
Making a formal complaint
If you feel your request has not been handled fairly, you can raise it formally (‘raise a grievance’) with your employer. If raising a grievance does not resolve the problem, it might be possible to make a claim to an employment tribunal.
You might be able to use the ACAS Arbitration Scheme for some flexible working cases, instead of going to employment tribunal.
What if you’ve been treated unfairly because of your request?
Your employer should not dismiss you or treat you unfairly (cause you “detriment”) because you:
- made a flexible working request
- intend to make a flexible working request
Detriment means unfair treatment that leaves you worse off, for example if your employer:
- reduces your hours
- overlooks you for promotions or development opportunities
- says no to your training requests without good reason
If you feel you’ve experienced detriment or have been dismissed because of a flexible working request, you might be able to make a claim to an employment tribunal.
When can you make another request?
You can make a new request if it’s been more than 12 months since your last request. Some employers will allow more than one request within 12 months, so it’s worth checking your workplace’s policy.
For further information on the right to request flexible working or if you feel that you have been discriminated against as a result of a refusal to grant flexible working why not contact one of Alexander JLO’s expert Employment Lawyers and see what we can do for you?