Flexible Working

Since 30th June 2014, all employees have had the right to request flexible working, if they have 26 weeks of continuous service. From 6th April 2024 this becomes a Day 1 Right.

In addition, to comply with the Parental Leave (EU Directive) Regulations, agency workers with at least one year’s service have a right for the time to request flexible working, but can only apply on their return from unpaid parental leave.

Acas have revised their Flexible Working code of Practice, which you can find here, and provided more detailed guidance here. Acas also offers a Flexible Working Arbitration Scheme, which employers and employees can use if the flexible working request can not be met and the claim is heading to an Employment Tribunal.

This article covers:

• Who is eligible to apply for Flexible Working?
• Making a request
• How the employer should handle the request
• The employer’s decision
• The right to request time off for training and study
• More information

Who is eligible to apply for Flexible Working?

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).

To be eligible to apply you must:

• Be an employee who has worked with your employer continuously for 26 weeks at the date you apply for flexible working (for more information read our continuous service article).  This changes on 6th April 2024 to become a Day 1 right.
• Be 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, not the client (end-hirer) it’s their decision, although this is complicated as they will need knowledge of whether this is acceptable to the client
• Only apply to work flexibly once in every 12 months.  From 6th April 2024 you can make 2 flexible working requests a year, as long as the first request has been decided.

Making a request from 6th April 2024:

The request must be made in writing stating the date of the application, the change to working conditions you are seeking and when you would like the change to take effect. You should also say this is a statutory request and say if they’ve made a previous application for flexible working and when. You should also say if you’re making a request in relation to the Equality Act 2010, for example as a reasonable adjustment for a disability.

The government has produced a standard form that you can use to make a flexible working request.

How the employer should handle the request

Employers have a duty to consider requests ‘reasonably’ and the ACAS Code gives guidance on this. 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 can’t accommodate your desired work pattern.

Your employer should arrange to discuss your request with you, in confidence, as soon as possible. This discussion doesn’t have to be in person (it can be on the phone for example). There is no statutory right to be accompanied to any discussion (by a Trade Union representative or colleague for example) but your employer is advised to 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 two months to consider your request, including any appeal. This timescale can be extended if you both agree.

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Your employers decision

• Your employer may accept your request and establish a start date and any other action

• Or they may confirm a compromise that has been already discussed, such as a temporary agreement

• Or they may refuse the request, setting out the business reasons for doing so.

They should do this in writing.

If your request is approved, then 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).There are eight grounds on which a business may reasonably refuse this request, which are:

• Additional costs that are unacceptable to the business
• 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 doesn’t 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. If a temporary period is agreed, the Employer doesn’t have to review or consult with the employee about this time period ending, although it is best practice to do so

It’s important that a business is consistent in its approach to flexible working requests, however, it’s accepted that business needs change over time and each request should be carefully considered on its own basis/merits.

If you’re unhappy with your employer’s decision you may be able to appeal against it, although there is no legal requirement to provide an appeal. The company 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.

Two first-tier employment tribunal cases in 2016 (Whiteman v CPS Interiors Ltd and Smith v Gleacher Shacklock LLP) confirmed that employees only have a right to request to work flexibly, they don’t have the right to work flexibly.

We have an article with more information about part-time workers rights here.

The right to request time off for training or study

Certain employees have this right. To be eligible to apply you must:

• Be an employee (not an agency worker or self-employed) in England, Scotland or Wales (this right does not apply in Northern Ireland)
• Have worked with your employer continuously for 26 weeks at the date you apply for time off
• Only apply for time off for training or study once in every 12 months (although your employer can consider more frequent requests they have no statutory obligation to do so)
• Work for an organisation with 250+ employees.

The (legal) request for time off must be for training or study

• That has the purpose of improving your effectiveness in your employer’s business, or
• Improving the performance of your employers’ business.

The training or study can be provided by your employer or by an external provider and can take place at any time and can be supervised or unsupervised. The training or study does not need to lead to a qualification.

The request must be made in writing, including details of the subject matter of the training, where and when it will take place, who will provide it and if it’ll lead to any qualification. 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 can’t accommodate your desired work pattern.

Your request can be refused if:

• The proposed study or training wouldn’t improve your effectiveness or the performance of the employer’s business
• Additional costs will be incurred
• It’ll have a detrimental effect on the ability to meet customer demand or quality or performance
• There’s an inability to re-organise work among existing staff or recruit additional staff will be required
• There is insufficient work during the period the employee proposes to work
• It’s incompatible with planned structural changes.

More information

After you’ve made a request, your employer needs to meet with you within 28 days (unless they agree to your request without needing a meeting). You can be accompanied to the meeting by a work colleague.

After the meeting, your employer needs to let you know their decision, in writing, within 14 days. If they refuse your request they need to explain why (from the reasons above) and notify you of your right to appeal. If they agree, your employer needs to confirm in writing the details and set out any changes to your working hours.

If you’re unhappy with your employer’s decision you can appeal against it, within 14 days of receipt of the decision. An appeal meeting must be held and the employer must notify you of the appeal decision, in writing, within 14 days of the meeting.

If your request is refused again at appeal – your employer should write to you to explain the grounds and reasons for refusal – you should discuss the matter informally and/or contact your Trade Union official if you’re a member and/or use your employer’s grievance procedure, before finally complaining to an Employment Tribunal.

You can bring a claim to an Employment Tribunal:

• If your employer fails to follow procedural requirements
• If the refusal was based on incorrect facts
• With a complaint in relation to the reason for the refusal – but only after an appeal has been heard.

If a tribunal upholds your claim it can order an employer to reconsider the request and can make an award to you of compensation of up to eight weeks pay (subject to the statutory limits of a weeks pay).

If you are an employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small creative 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 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.