Did you know that under the Flexible Working Regulations, employees may be able to submit a ‘flexible working request’ to their employer for any of the following desired reasons:
In this week's blog, we explore some key questions and areas surrounding the term "flexible working" and what it means for the employer and employee:
Employees can submit a request for flexible working if they satisfy the required conditions, namely:
• continuous employment for at least 26 weeks
• they are employees rather than other types of worker such as agency temps/contractors etc
• they have not submitted a previous flexible working request in the last 12 months.
Once received by the Employer, the request must be looked at fairly – following the Acas Code of practise on flexible working requests, and a decision made within 3 months of its receipt. All employees who qualify have the right to make this request.
Some businesses will adopt other policies which may accommodate the essence of the request e.g. shared parental leave, bereavement, day care policy etc.
The request must be in writing and be clearly marked that it is in fact a ‘statutory flexible working request’.
The letter must have the following ingredients:
Any other relevant useful information can be added that might be relevant if it helps the employee or the business e.g. willing to work on Sundays when most people would prefer not to.
Ideally, the employer should arrange a meeting to discuss the request. This can be a video meeting in the current pandemic. The meeting should cover the reasons for the request, the problems that may arise and how they can be overcome, and any alternatives if the original request simply is not going to work. The employee can ask to bring someone to the meeting (colleague or Trade Union Rep) but there is no legal right to this.
The decision should be given in writing for the sake of clarity and it should be given to the employee as soon as reasonably practical. In any event, it must be given within 3 months of the meeting.
If the request is approved, there might be a side letter or new contract of employment confirming the position. This should include the agreed change, when the change will start, how long the change will last (if for a fixed period of time), and it is always a good idea to have a review date to ensure that the change is working properly.
If the change affects anything that must legally be in an employee’s contract of employment, the employer must put it in writing within a month of the change taking effect.
This includes changes to the following:
The employer does not have to agree to the request and can refuse if there is a valid business reason for doing so.
The employer can legally turn down the flexible working request if:
Appeals should be made as soon as possible and certainly in the time allowed by any company policy. The employee can talk with the employer if it is felt that the decision was wrong or unfair – informally at first is preferable. This can make it easier to explain why the decision is felt to be wrong or unfair. New information may be presented if not available earlier. Evidence of unfairness can be presented too but the employee should appreciate the employer’s reasoning and perhaps suggest a compromise.
The appeal can be in email or letter form explaining why the decision should be looked at again and what the employee would like to happen next (for example, look at the new information and meet up to discuss the flexible working request).
The employer can consider or dismiss the appeal but should do so as soon as possible and still within the 3-month window from the original request date. The employer can ask for more time to make a decision, but only if the employee agrees.
If the employee still feels that the request has not been handled fairly, a grievance can be raised. There should be a grievance policy to rely on. If this still does not work, the employee might be able to make a claim to an employment tribunal. Alternatively, the Acas Arbitration Scheme might be used.
The employer should not dismiss or treat the employee unfairly or cause detriment just because of the request or intended request. Employees who feel that they have suffered as a result of making the request could possibly sue for unfair dismissal.
12th February 2021
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