The previous laws
Before this date, only certain employees had the legal right to request flexible working hours. These were:
- Employees with children under the age of seventeen
- Employees with disabled children under the age of eighteen
- Employees who care for certain adults aged 18 or over
Change in laws
From 30th June 2014 anyone can ask their employer to work flexibly if they:
- Are an employee who has worked for their employer continuously for 26 weeks at the date they apply for flexible working (for more information about continuous service, read our guide here).
- Are an agency worker who has at least one year’s service and has returned from unpaid parental leave. As your employer is likely to be the agency and not the client (end-hirer), it is their decision, although this is complicated as they will also need knowledge of whether this is acceptable to the client
- Only apply to work flexibly, under the statutory procedure, once in every 12 months
The (legal) request to work flexibly can be with regards to:
- Hours of work (you may want to work flexi-time or do term-time working)
- Times of work (shorter or different starting/ending times of work)
- Place of work (you may want to work from home)
If you are employed on an Employee Shareholder Contract (which was introduced on 1st September 2013), you will have given away your right to request flexible working in exchange for receiving shares between £2,000 – £50,000 in your company.
Making a request
The request must be made in writing. It must state the date of the application, the change to working conditions you are seeking and when you would like the change to take effect. It must also include what effect you think the requested change will have on the employer and how, in your opinion, any such effect might be dealt with.
You should also say this is a statutory request and whether you have made a previous application for flexible working and when. You should also say if you are making a request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability.
The Government have produced a standard from that use can use to make a request, which you can see here.
How your employer should handle the request:
On 30th June 2014, the statutory procedure for considering flexible working requests will be replaced with a duty for employers to consider requests ‘reasonably’ – an ACAS Code will give guidance on this.
Employers and employees will no longer have to process requests in a particular way or within a specific time-scale – under the previous arrangements, after an employee had made a request to work flexibly, the employer needed to meet with the employee within 28 days. After the meeting the employer needed to let them know their decision within 14 days.
Your employer has a legal duty to consider your request seriously but your request can be refused if there are clear business reasons why they cannot accommodate your desired work pattern.
If your request is approved, this is a permanent change to your contract of employment and you have no automatic right to change back to your previous pattern of work, unless a trial period or specified time period is agreed. You can, however, make another statutory request after 12 months.
Your employer should arrange to discuss your request with you, in confidence, as soon as possible. This discussion does not have to be in person (it can be via the phone). There is no statutory right to be accompanied to any discussion by a Trade Union representative or a colleague but your employer may allow this.
If the company arranges two meetings and you attend neither, without good reason, the company can deem your application as ‘withdrawn’.
The company will have up to 3 months to consider your request, including any appeal. This can be extended if you agree.
The employer’s decision:
Your employer may accept your request and establish a start date and any further action that needs to be taken. Alternatively they may confirm a compromise that has been already discussed, such as a temporary agreement. They may also refuse the request, setting out the business reasons for doing so.
They should do this in writing.
There are 8 grounds on which a business may reasonably refuse your request to work flexible, which are:
- Additional costs that are unacceptable to the business;
- The inability to re-organise work amongst existing staff;
- An inability to recruit additional staff;
- The employer considers the change to have a detrimental impact on the business’s ability to meet customer demand;
- The employer considers the change to have a detrimental impact on quality;
- The employer considers the change to have a detrimental impact on performance;
- There is insufficient work during the periods the employee proposes to work
- There are planned structural changes and the employer does not consider the flexible working changes will fit with these plans.
An employer has the right to agree to a trial period or a temporary change to see how a change works in practice before confirming a permanent change.
It is important that a business is consistent in its approach to flexible working requests, however it is accepted that business needs change over time and each request should be carefully considered.
If you are unhappy with your employer’s decision you may be able to appeal against it, although there is no legal requirement to provide an appeal. They should arrange any appeal as soon as possible.
If your request is refused again at appeal you should discuss the matter informally and/or contact your Trade Union official if you are a member and/or use your employer’s grievance procedure, before finally complaining to an employment tribunal.
Acas have produced a Draft Code of Practice which can be found here.
The Guide to handling requests can be found here.
If you are an employer and need ongoing professional help with any staff/freelance issues, or a contractor/freelancer/employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Matt Madd