Flexible working

Guide to flexible working requests

This guide deals with the statutory right to request flexible working. The right to request flexible working was first introduced in 2003. Originally it applied only to parents of children under six years of age (or for disabled children under 18 years of age) but was subsequently extended to those with responsibility for children under 18 years of age and those who have care of a vulnerable adult.

From 30 June 2014 the right to make a flexible working request was extended to all eligible employees even if they do not have caring responsibilities for children or vulnerable adults. Furthermore the detailed statutory procedure for handling flexible working requests was removed and replaced with a less prescriptive “principles based” approach.

Further changes to the Flexible Working regime will come into force on 6 April 2024 and are detailed in each section below. The ACAS Code of Practice on Handling Flexible Working Requests has been updated to reflect these developments.

Now that the scope of the right to request flexible working is so broad, it is crucial that organisations know who is now eligible to make a statutory request, how they must be dealt with and how they should plan to accommodate such requests.

Whilst the right to request flexible working is a stand alone right it is important not to forget that those with “protected characteristics” are still able to rely on their rights under the Equality Act 2010 not to suffer less favourable treatment because of those characteristics. In particular this could mean that carers of disabled children or adults, for example, can continue to bring additional claims of indirect discrimination or associative discrimination if their requests for flexible working are unreasonably refused.

It also means that a non eligible employee could make a request for flexible working outside of the statutory regime and could bring a discrimination claim if it is not properly dealt with and/or rejected.

Who can make a flexible working request?

Only employees (as opposed to agency workers and contractors) can make a flexible working request but to be eligible they must:

have 26 weeks continuous employment on the day of the request;
not have made a request in the previous 12 months.

The person making the request does not have to justify their request by any reference to caring responsibilities or give any other reasons for the request but employers should still be mindful of any specific needs an employee may disclose in relation to caring for children or dependant relatives.

Note that from 6 April 2024 flexible working will become a 'Day 1' right (which means that 26 weeks service will no longer be required).

From that date, employees will also be permitted to make two requests in any 12 month period rather than one.

What type of requests can be made?

The employee can request a variety of alternative working arrangements but these generally fall into one or more of three categories:

Hours of work;
Times or patterns of work; and
Location of work.

The type of arrangements that might be suggested could include working from home, job-sharing, flexi time, term time working, part time working, compressed time, staggered hours, split shifts, annualised hours or self-rostering.

If the employer agrees to the change proposed by the employee it is worth remembering that the change is permanent so the organisation needs to consider the long term impact of the change before agreement is given. However some employers agree to changes subject to a trial period or include a right to revert to the previous arrangements (in specified circumstances) as a safety net. Any clauses to this effect need to be in writing and unambiguous.

How should the employee make their request?

The procedure for making a statutory request is set out in the ACAS Code of Practice. Employees and employers will need to follow the Code to ensure they deal with requests reasonably which will include processing them in a timely manner. If the employer fails to comply with the ACAS procedure this is a matter which can be taken into account by a tribunal when considering a claim in relation to flexible working.

There is no reason however why an employer cannot continue to consider any informal requests from an employee but they must be careful if they wish to reject such a request as it may be seen to pre-judge the outcome of the employee making a subsequent formal request. Failure to properly consider informal requests may also lead to claims of discrimination, where applicable, and therefore still need to be handled properly and recorded.

Furthermore, an employer will also appear to pre-judge the outcome of a request if it only uses the formal procedure to refuse a flexible working request but uses an informal approach when it is happy with the employee’s proposals. For consistency it is therefore advisable to use a procedure for all flexible working requests which reflects the steps in the ACAS code of practice.

To initiate the process, the employee must submit a written request which sets out the following:

The date of their application, what type of change they are seeking and when they would like it to take effect
How they think their request can be accommodated by the employer, taking account of any impact the change might have on their workplace.
A statement that this is a statutory request and whether they have made a previous flexible working request and when that was made. A [model request letter] is available.

Note that from 6 April 2024 an employee is no longer requires to explain the potential effects of their application on the employer and how these might be dealt with. It is the employer's responsibility to raise and discuss any potential issues as part of the consultation process.

If the employee submits an incomplete application it would be wise, to avoid any potential discrimination claims, to give them an opportunity to amend their form and re-submit it rather than dismiss the application as ineligible. You should give them guidance on what information is missing and explain to them that consideration of their request will take place when the information is received. Minor or trivial omissions should not artificially delay the process of consideration. However to avoid incomplete applications being submitted, guidance on setting out an application should be provided by the employer, perhaps by having a flexible working policy or procedure which is in a handbook or on a company intranet system.

Employees are entitled to withdraw their application at any time providing a change to their contract has not been agreed and/or implemented. Model letter of withdrawal of request.

Dealing with a flexible working request

What is the timetable for dealing with requests?

The overall timescale in the Regulations for dealing with requests is that they must be considered and decided upon within 3 months from first receipt, unless you agree to extend this period with the employee.

Please note that from 6 April 2024 the timeframe for considering a request under the Regulations will be shortened from 3 months to 2 months, unless an extension is mutually agreed.

When the request is received the employer should arrange a meeting as soon as possible to discuss the employee’s application. The employee should be allowed to be accompanied at the meeting by a work colleague. A model letter of invitation is available.
However if the employer is willing to accept the employee’s proposal a letter of acceptance can be sent without the need to arrange a meeting but the employer still needs to notify the employee of their acceptance.
At the meeting the employer should discuss the request with the employee to get a better idea of what changes are being sought. As with all such meetings, they should take place in private.
Try to keep an open mind in the meeting but there is no reason why you cannot ask the employ to consider any particular difficulties that you anticipate. Always allow time to consider the content of the meeting and investigate the matter if necessary to ascertain what might be possible. Weigh up the benefits of the requested changes against any adverse impact on your organisation, being careful to avoid any decisions tainted by potential discrimination.
After the meeting the employer should write to the employee as soon as possible to either accept or reject the new arrangements being proposed. If they are rejected the letter must give the grounds on which they were rejected and giving details of the employee’s right to appeal the decision. Note that a request may only be refused for one of eight permitted business reasons (See 'What if we wish to reject the request' below). Model letters to accept or reject the request are available.
The employee is not given a time limit from when their request is rejected in which to lodge their appeal but there is nothing to prevent you suggesting a timescale, in line with other appeal mechanisms. However if there are good reasons why an appeal has not been lodged soon after the decision is received you should still consider the employee’s appeal.
After receiving the appeal the employer is advised to speak with the employee about the decision and consider any new information or omissions in the procedure for handling the request. We would recommend that as with other procedures a meeting to discuss the appeal is arranged as soon as possible.
The employee should be notified of the outcome of their appeal, preferably in writing.
If consideration of the request is likely to take longer than three months in total this timescale may be varied by agreement with the employee – see the letter seeking an extension of time.
If an employee fails to attend either the first meeting or appeal or any rearranged meeting without good reason the employer can consider the request to be withdrawn.

It is important to make a note of the date when a request is received as the employee is not permitted to make another application within 12 months of that date (Again, please note that after 6 April 2024 employees will be permitted to make two requests per 12 month period rather than one).

What happens if the employee is about to go on, or has gone on maternity leave?

Applications for flexible working must still be managed by the employer even if the employee is about to take or is taking maternity leave (or other family leave such as adoption leave or parental leave). An employer might wish to state in its family policies the procedure to be followed in these cases and may include some encouragement to employees to mention it to you before they take leave or to make their application in good time before they return to work. They should also be reminded that submitting a request will trigger the need to attend meetings to consider their request.

Conducting the meeting

At this meeting (and any subsequent appeal) the employee should be allowed to be accompanied by a work colleague of their choice. This should be explained to the employee before the meeting (usually in the letter of invitation) and should be checked at the meeting if the employee does not have a companion. If the organisation recognises a trade union then we would also recommend that a domestic trade union representative be permitted to accompany an employee if they request it.

Employers should conduct the meeting in the spirit of trying to reach an acceptable outcome for the employee and should avoid being dismissive of their proposal before it has been properly considered. Tribunals will generally look for a “can do” approach rather then a “can’t do” approach but this doesn’t mean that genuine difficulties for the employer are to be ignored.

At the meeting the discussion should explore the request and look at ways of accommodating the request or look at alternatives which the employee may find equally satisfactory. It is possible to adjourn and reconvene the meeting if further investigation is required before making a decision.

Where practical, the employer should gather factual evidence to assist them in assessing the employee’s request. The views of management and fellow workers (if affected) may also be taken into consideration although the employer should be wary of only gathering evidence to support a preconceived idea that the employee's proposal will not work. If difficulties in accommodating the change are apparent then the employer needs to ask themselves how significant they are and if they can be overcome. Be wary of management views that say “we have never done this job this way” or “we don’t have part time jobs here” as these views often don’t stand up under scrutiny and can be potentially discriminatory. If the employer believes that it is unlikely to be able to accommodate the request, then it is advisable that the employer explains what it perceives to be the “obstacles” and see if, in consultation with the employee, any ways of overcoming them can be identified.

If the employee does not attend the meeting you should investigate the reasons behind their failure to attend and in most cases it would be advisable to rearrange the meeting and give them a further opportunity to present their case for change. Do not assume that non attendance means that the request has been dropped – it is up to the employer to be pro-active. However if the employee fails to attend again without reasonable cause you may treat their application as withdrawn but it is advisable to discuss this with your HR Rely advisor before making this decision.

What should I do if I accept the change?

If you agree to the change, or a variation of the request is agreed by the employee, you will need to re-issue their contract with an amendment to the specific terms that are affected, for example, changes of working hours, days of working or shift patterns etc. It is important that the changes are clear and unambiguous. A date for implementation needs to be agreed with the employee and the employee should then be asked to sign a copy of the revised terms.

You should also make it clear that the change is a permanent one and there is no entitlement (by either party) to revert back to the original arrangements at a later time – although of course the employee may make a further request in the future. Equally if an employee’s circumstances change, perhaps when children no longer need care, there is no automatic right for the employer or employee to reinstate their previous working arrangements. However in some cases, for example where an employee is caring for a terminally ill relative, the parties can agree either a fixed time for the change or that the terms will revert back to the original contract when the circumstances change. This may also be the case if the employee has requested a change, for example, to undertake a further education course which is completed within a defined period.

The employer may wish to ask the employee to undergo a trial period to see if the arrangement will work in practice but this is not stipulated in the legislation and may not be enforceable if the employee doesn’t agree to it. See example letter requesting trial period.

Best practice would suggest that regular and open communication is established with the employee during the initial stages of the new arrangement to ensure that any “teething troubles” are ironed out at an early stage. This might be particularly useful in, for example, job share arrangements or arrangements that include home working.

What if we wish to reject the request?

If the employer decides that they have legitimate business reasons for refusing the employee’s request then they must write to the employee setting out the grounds for the refusal and give an explanation of why those grounds apply. The following business grounds may be relied upon:

Burden of additional costs;
Detrimental effect on the employer’s ability to meet customer demand;
Inability to re-organise work amongst 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;
Planned structural changes.

'Sufficient' explanation must be given of why the chosen grounds apply. Although this is not defined in legislation, this will usually include any factual evidence that supports the employer's rationale. Factual evidence might include data on peaks and flows of work, failed attempts to recruit, high cost of re-training to maintain key skills, lack of cover for absences, lack of supervisory cover if critical to role performed etc.

Employers should avoid making decisions based on subjective opinion about the employee and their circumstances. Equally dangerous are fears that granting the request will set a precedent. The letter to the employee must be clearly dated and must offer the employee the right of appeal. See letter rejecting flexible working request.

What if the employee appeals?

Whilst, under the Regulations, the employer is not obliged to offer a right of appeal, ACAS believe it is good practice to do so. If an employer does allow an appeal they should remember that consideration of the appeal must take place within the three month window allowed for in the Regulations unless an extension can be mutually agreed. (Again, please note that from 6 April 2024 the timeframe for considering a request under the Regulations will be shortened from 3 months to 2 months, unless an extension is mutually agreed).

We recommend that the employer should arrange an appeal meeting at which there will be a further discussion of the employee’s request. If necessary the employer can ask for an extension of time to hear the appeal but this must be agreed by both parties and the agreement must be recorded in writing.

There is no need to hold an appeal meeting if the employer decides to agree to the new arrangement. If this is the case, the decision must be given in writing specifying the details of the arrangement and the date on which it will start.

The appeal meeting should be an opportunity for the employee to question why the decision was made and to probe the facts on which the employer’s decision was based. As with all appeal processes, it is good practice to ensure that the appeal is undertaken by a manager who was not previously involved in dealing with the request and who is senior enough to make an alternative decision should that be necessary.

The outcome of the appeal should be in writing, be clearly dated and give sufficient reasons for the appeal being refused, although this does not necessarily include repeating the detailed business grounds given following the first meeting. If the grounds of appeal by the employee are clear the employer may wish to confine themselves to considering these points alone, providing no other “miscarriage of justice” is apparent. See letter rejecting flexible working after appeal.

If the appeal of the employee is successful then the employer will need to amend their contract as outlined above.

What happens if we fail to abide by the legislation?

An employee has the right to bring a complaint to an employment tribunal if the employer has:

Failed to reasonably consider their request by rejecting it out of hand or not following the ACAS code of practice. For example by
- not holding a meeting; or
- not notifying them of a decision; or
- not offering a right of appeal
Not based their decision to reject the request on one of the prescribed reasons set out in the regulations.
Based their decision to reject the request on incorrect facts.

The employee has three months from the date of the breach or the date when they where notified of the employer’s decision in which to bring a claim.

The tribunal has the power to order the employer to reconsider the application and may award compensation of up to 8 weeks’ pay (based on statutory pay limits).

An employee may also bring separate claims that they were denied the right to be accompanied (remedy of up to 2 weeks’ pay) or that they have suffered a detriment by making a flexible working request.

In addition to this an employee may have grounds for bringing a claim of direct or indirect sex discrimination. For example, female employees may argue indirect sex discrimination on the basis that female employees are less able to comply with normal working arrangements due to them having the greater burden of child care responsibilities. Male employees may also believe they are directly discriminated against if an organisation shows a more favourable response to requests for flexible working made by female employees.

If an organisation is found to have discriminated against an employee, then the Tribunal may award compensation which in discrimination claims is unlimited and includes an element for injury to feelings.

How can I manage flexible working in my organisation?

Employers need to adopt a consistent approach to dealing with flexible working requests to ensure that they can deal with requests effectively but also can manage their business in a way that can accommodate flexible working where possible. To this end, employers should plan for receiving and dealing with flexible working requests and introduce a flexible working policy.

On some occasions an employer may receive more than one request to work flexibly from within a team. Consideration will need to be given as to the impact of granting all the requests but if accommodation of them all is not possible then a fair system should be adopted. It is recommended that the requests should be considered in the order they are received and if the first request is approved and this has caused a change in the workplace overall, this can be taken account of in considering any subsequent requests.

For multiple requests it is not necessary to try and decide which is the most “deserving” but each case should be evaluated on its merits within the business context. Before rejecting a request it is also worth exploring with the employee any adjustments or compromise that might be accommodated. Ultimately if a choice cannot be made between applications random selection criteria might have to be used provided employees are told about this in advance. If a number of other employees are already working flexibly within the same workplace it is advisable to check if any of them still need to work flexibly thereby creating more capacity for newer requests.

Training should also be given to anyone in a supervisory or management position who may be required to handle a flexible working request or appeal in order to familiarise them with the procedure involved and best practice in handling the employee discussions. Finally ensure that you communicate your approach to your workforce and ensure that they know the correct procedures for making a request, for example, via briefings or a section in the employee handbook.

[NOTE: Management training in handling flexible working requests and diversity and inclusion generally is available from the HR Rely service – contact your advisor for more details].

What if the flexible working arrangement does not work out?

Unless the parties have agreed to a trial period and the right to revert to the previous working arrangement, the arrangement cannot be ended because it is not working. In these circumstances the employer should investigate whether the problems arise from the employee’s under performance or whether they actually arise from the working arrangement itself. Poor performance should be handled via the organisation’s capability procedures but changes to the working arrangement can only be achieved by agreement to make further changes. Advice should be sought from your HR Rely advisor if this is the path you wish to take.

FAQs

We have an employee who has been working on a part time basis, 3 days a week, for 8 years. Now that her youngest child has left home, she no longer wishes to continue on a part time basis and would like to resume full time hours. Although she is a good worker, we made arrangements to accommodate her on a part time basis which worked. Business is difficult at the moment so we have no capacity to give her any additional hours but are worried that we must allow her to come back on a full time basis now that the reason for her wanting flexible working is no longer there. Are we obliged?

Under the statutory flexible working provisions any change to accommodate an employee’s flexible working request is a permanent change. This means that although the employee’s circumstances may have changed so that flexible working is no longer necessary, there is no statutory right for the employee to resume her original hours. The only other basis on which an employee may insist on resuming her original hours is if the contract provides that she could return to her full time hours at some point. However this would be a highly unusual circumstance.

Assuming that the contract was permanently changed to accommodate her part time hours, then reverting to full time hours will require a further contract change. A contract change would require both parties to agree and so, in the absence of your agreement, her employment can continue on a part time basis.

We have an employee who has recently returned from maternity leave and has asked to return on a part time basis. She wants to work 3 days a week but, as her role is one that involves both continuity and some supervisory duties, we have some concerns as to whether such an arrangement would work. Whilst we want to try and accommodate the request we are concerned in case the arrangement does not work out. Is it possible for us agree to the part time working on a trial basis?

Yes it is. If you do have reservations about how the flexible working arrangement may work then it is better to trial it than reject the request outright. Trialling the arrangement means that you can see what the problems are in practice and try to find a way of over-coming them. If the issues can’t be overcome, you should have a stronger argument for rejecting the request given that you have explored the possibility of the part time arrangement.

If you are going to enter into a trial basis arrangement then you should make sure that this is documented in writing and signed by both parties. The agreement should set out the working pattern that is being trialled, the duration of the trial and specify the trial end date. The agreement should also make clear that the Company has the right to require the employee to revert to the original working pattern if at the end of the trial period if it is of the view that the part time working pattern can’t be accommodated.

If during the trial it appears that the part time arrangements are not working, then this should be discussed promptly with the employee as a matter of good practice. This avoids the employee being 'taken by surprise' if at the end of the trial period the request cannot be accommodated.