What is Flexible Working?

Throughout the pandemic has been a substantial increase in flexible working. To compare, in 2010  3% of workers working from home all the time, that figure had risen to 5% before the pandemic. Figures rose rapidly in response to the Government’s guidance that all workers should try to work from home. By the final months of 2020, the number working from home all the time was at 10%. 

Businesses have reported that working from home has been successful. Therefore, it is expected there will be an increase in flexible working requests. It is imperative that businesses fully understand how to deal with flexible working requests as well as the legal process that needs to be followed.

What are the types of flexible working?

There are many different types of flexible working:

  • Job sharing

Job sharing is an arrangement where typically two people are retained on a part-time or reduced-time basis to perform a job normally fulfilled by one person working full-time.

  • Working from home

This is working entirely at home. Persons will be required to attend regular meetings at the office or with customers, this could be virtually or in person. Very often, time is split between office and home or with customers – for example, two days in the office and three days at home or with customers.

Some staff may prefer to work in the office and work from home only occasionally.

  • Part time

A part-time job is a position that requires employees to work a lower number of hours than would be considered full-time by their employer. An employer might classify a worker as part-time if he or she works less than 35 hours per week.

  • Compressed hours

A compressed work schedule allows an employee to work a traditional 35-40 hour work week in less than five workdays. For example, a full-time employee could work four 10 hour days instead of five 8-hour days.

  • Flexi-time

Flexi-time varies from business to business; generally there is a set core period when employees must be at work, and the remainder of the working day is flexible. Staff can choose to work earlier or later, totting their hours up to equal a set amount over a week or month.

  • Annualised hours

The employee has to work a certain number of hours over the year, but they have some flexibility about when they work. They are generally expected to work each week and remain available, but their work ties are not set and very flexible.


How do employees apply for flexible working

Employees can apply for flexible working if they’ve worked continuously for the same employer for the last 26 weeks. It’s known as ‘making a statutory application.’

How to make a statutory application?

  • It must be in writing.
  • It must be dated.
  • It must state that it is a statutory request for flexible working.
  • The working pattern you are asking for and the date on which you would like it to start must be stipulated.
  • It must be explained how the proposed change would affect your employer and colleagues and how you think any changes might be dealt with.
  • It must be stated whether you have made a previous application for flexible working to your employer, and if so, when.
  • Possibly say if you are making a request because you are put at a disadvantage because of your age, sex, race, disability, religion or belief, or sexual orientation.
  • Possibly say why you are making your request, if you think it will help.

For example, if you need help with caring arrangements, your employer may realise that it would be discriminatory to refuse your request. However, you don’t have to say why you are making a request if you don’t want your employer to know.

What to do with a statutory application request?

  • Consider the request and make a decision within 3 months, or longer if agreed with the employee. This would normally be conveyed to the employee by way of a meeting and confirmed in writing.
  • If the request is accepted, change the terms and conditions in the employee’s contract.
  • in determining a flexible working structure, any change to a contract would be considered a permanent change and only one request can be made in any 12 month period.
  • If the request is denied, the employee should be invited to a meeting where the employer informs the employee of the reasons for refusing the request. Again, this should be confirmed in writing and include the right to appeal.


What to do when accepting a flexible working application

The employer must take certain actions when accepting a flexible working statutory application:

  • They must arrange a statement of the agreed changes
  • They must determine a start date for flexible working
  • They should also change the employee’s contract to include the new terms and conditions. This should be done as soon as possible but no later than 28 days after the request was approved. Any change would be considered a permanent change.


What to do when rejecting a flexible working application

The employer will need to provide the employee with a good reason for the rejection of the request, this should be delivered in a formal meeting. Any decision should be confirmed to the employee in writing.

What are viable reasons for rejecting a statutory application?

  • additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work output
  • future changes already planned


How to deal with employee appeals

An employee should be allowed to discuss the refusal, especially if there is new information that was not available to the employer at the time they submitted the request. They may also appeal if they believe the application was not handled reasonably or in line with the employment policy.

The law does not require an employer to allow an appeal. However, where they do, the employer must consider the whole request, including any appeal, within three months of first receiving the original request for flexible working. This can be made an exception for by agreeing on an extension with the employee.


How to appeal against an employer

Appeal in writing to the HR department or to the person who deals with the grievance and/or disciplinary appeals. They should clearly and succinctly set out the reasons why they are appealing.  The employer should then arrange a meeting with the employee as soon as is practicable in order to discuss the appeal. The employee should be informed of their right to be accompanied to the meeting by a work colleague or trade union official.

If the request has been rejected on appeal and the employer has notified the employee of this, the employee may complain to an employment tribunal.


So, should businesses entertain flexible working requests?

Businesses need to be mindful of the fact that a significant number of employees have been successfully working from home during the pandemic.

Any decision to turn down a flexible working request must be justifiable and based on at least one of the eight legitimate reasons for turning down a request.

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