From 30th June 2014, all employees will have the right to request flexible working, if they have 26 weeks continuous service.
In addition, from 8th March 2013, 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.
If you do not have enough service your employer may still may be prepared to consider you working flexibly, although they have no legal responsibility to do so.
[Article updated 2017]
A new type of employment contract – the Employee Shareholder Contract – came to life on 1st September 2013. Under this type of contract employees give away some of their employment rights , including the right to request flexible working and the right to request training, in exchange for receiving shares between £2,000 – £50,000 in their company (and benefiting from tax advantages on these shares). More details here.
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 about continuous service, read our Guide here).
- From 8th March 2013, 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 is 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.
Making a request:
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. 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 say if they 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 the Employer should handle the request
In addition, on 30th June 2014, the statutory procedure for considering flexible working requests will be replaced with a duty for employers to consider requests ‘reasonably’ and 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 timescale
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.
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 on the phone for example). There is no statutory right to be accompanied to any discussion (by a Trade Union representative for example) but your Employer may allow this.
If the Company arranges 2 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 timescale can be extended if you both agree.
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 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); although you can make another statutory request after 12 months.
There are 8 grounds on which a business may reasonable 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 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. If a temporary period is agreed the Employer does not have to review or consult with the employee about this time period ending.
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 on its own basis/merits.
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. 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 employers grievance procedure, before finally complaining to an Employment Tribunal.
2 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 do not have the right to work flexibly.
Acas have produced a Draft Code of Practice which is here
And a Guide to handling requests here
For more information about part-time workers rights see our Guide on the 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 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.