A Guide to the Law on Flexible Working

With continued change in the modern workplace, flexible working has never been more popular. Find out how to keep within the law here…

A Guide to the Law on Flexible Working

Flexible working is a term you need to be well aware of as an employer. Employment law now currently stipulates that you must ‘consider seriously’ a request from any employee. This is regardless of whether they have a dependent or not.

It is worth noting, however, that the rule diffes in Northern Ireland.

What is flexible working?

Flexible working has a wide definition; it essentially refers to any working pattern other than the employee’s regular working pattern.

There are many common kinds of flexible working such as:

Flexitime arrangement

Flexitime requires an employee to be at work during a specified ‘core period’ but lets them arrange their other hours around their own commitments.

Compressed hours

Compressed hours allow employees to work the same number of hours they normally do but over fewer days.

Annualised hours contracts

Annualised hours is an arrangement where the employee and employer will agree a given number of hours to be worked across a year, but the pattern of hours might vary from day to day.

Staggered hours contacts

Staggered hours let people start and finish work at different times.

Career breaks

Career breaks can take the form of unpaid sabbaticals or time off in lieu.

Job-sharing arrangements

Job-shares enable two people to essentially share the same job – they might work alternate days or weeks, or even do the same job at different times of the day.

Change in workplace

Most commonly this means where someone will work from home – but it can be any agreement where they work outside of their normal office.

Who qualifies for flexible working?

Any employee with 26 weeks’ continuous service will be able to make a flexible working request, which you must ‘handle in a reasonable manner’.

They can make this request on any ground, as long as they follow the procedure (see below). You need to consider each request on a case-by-case basis.

How should an employee make a flexible working request?

A flexible working request from one of your employees must be in writing and contain the following information: the date of their application, the change in working conditions they are seeking, when they would like the change to happen, what effect the requested change is likely to have on you as an employer (and how they feel it could be dealt with) and a statement that it is a statutory request under the Employment Rights Act 1996. They should also state whether they have made a previous request for flexible working.

In order for your employees to comply with the procedure, it makes sense to let them know what you expect to find in a flexible working request.

What should I do when I receive a flexible working request?

Once you have received a written flexible working request from an employee, it is your legal duty to consider it, weighing the interests of your employee against your own business interests.

It is strongly advised that you take a number of steps.

Firstly, arrange to discuss the matter with the employee. This should be done in a private place, out of earshot of other members of staff. The meeting will help you gain a better understanding of exactly what they are looking for and how you could potentially mitigate the impact of the changes. This is obviously not necessary if you simply want to approve the request.

Secondly, consider the request. Look at the benefits that the proposed changes could bring to the employee and your business, weighing them against any negative impact they might have on your business.

You are only entitled to refuse a request on the basis of the burden of additional costs, an inability to reorganise work amongst existing members of staff, an inability to recruit additional staff, a detrimental impact on quality or performance, a detrimental effect on your business’ ability to meet customer demand, insufficient work available for the periods the employee now wishes to work or a planned structural change to your business.

Thirdly, deal with requests promptly. The law states that all requests must be dealt with within three months (including any appeals), unless you have agreed a longer period with the employee. If an employee fails to turn up to a scheduled meeting regarding the request twice in a row, you can consider the request withdrawn.

Finally, make a decision. As soon as you have made your decision, inform the employee in writing as soon as possible. Setting your reasons out in writing will provide them with a fuller explanation and you will find it easier to justify your decision in the event of any claim. If you accept the request, or accept it with conditions, sit down with the employee and agree concrete steps to put the request into action.

Furthermore, allow an appeal if necessary. This can be helpful in itself, as it provides you with a fuller opportunity to look at exactly why the request is being made.

What do I do when I have accepted a flexible working request?

If you decide to accept a request for flexible working, you need to start putting some changes into effect.

Firstly, amend the employee’s contract of employment. If the new arrangement changes the number of hours worked you need to make the necessary adjustments to pay and holiday entitlement. You might want to implement the changes on a trial basis.

Secondly, carry out a health and safety risk assessment if the employee will work from home. The risk assessment can be carried out by the employee themselves.

Thirdly, work out how the changes will affect other employees: Make sure you ameliorate the impact on other employees by arranging for cover if necessary – staff will not be happy if you simply burden them with more work. Tell them of the changes as soon as possible.

Finally, be consistent. Keep records of how you have dealt with flexible working requests so you can apply a uniform approach.

What other laws should I be aware of when considering a flexible working request?

There are other areas of employment law that, whilst they might apply to all employees, are especially relevant when considering a request for flexible working. These include dismissal, redundancy, discrimination, and working time and minimum wage.

Under dismissal, it is illegal to dismiss an employee because either they have been granted a flexible working request or they have made or intend to complain to an employment tribunal. When selecting employees for redundancy, you cannot use the fact someone has asked for or been granted flexible work as a factor in your decision. Doing so will result in a tribunal concluding you have unfairly dismissed the employee in question.

With regards discrimination, part-time and fixed term employees have the right to be treated no less fairly than their full-time counterparts. You might also be subject to a claim of indirect discrimination if you unfairly refuse a flexible working request. Finally, working time and minimum wage: Employees on flexible annual hours-style contracts have the same rights here as anyone else.

Where can I go for advice on flexible working?

You have two main options when seeking advice on flexible working.

Firstly, government guidance on flexible working gives a good overview of flexible working and what it involves.

Similarly, the Acas Code of Practice on handling flexible working requests gives a detailed rundown of your obligations under the new law.

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