15 Things you need to know about Flexible Working

Flexible working isn’t a new concept, but the coronavirus pandemic has placed a greater emphasis on different ways of working, such as homeworking, compressed hours or changing start and finish times. Employees benefit for a number of reasons, having more time for child care, less travel time and generally having a better work/life balance.  Likewise, employers stand to benefit in circumstances where they can accommodate the request. Having a more content staff creates a positive culture and helps with staff retention.  Failing to properly consider a flexible working request can leave an employer exposed to the risk of an indirect sex discrimination claim, or disability discrimination claim in certain circumstances.

Here are 15 things you need to know about flexible working requests:

1. If you have worked for your employer for 26 weeks you are eligible to apply formally for flexible working, but there is nothing to stop you asking at day one (or even at interview).
2. Before you ask formally, consider an informal approach. It might be that your employer is open to the change.
3. If your employer has a policy on making a flexible working request, follow it.
4. An employee needs to follow the formal requirement for making a request, which are:

• The request needs to be in writing and dated.
• The request needs to state the application is being made under the statutory procedure.
• You need to specify the change you are seeking including when you want it to start.
• You need to explain the impact the change will have on your employer and how this could be dealt with. To be successful with your application, give some careful thought to this, what positive things could you say about the change you propose?
• You will need to state whether a previous flexible working request has been made. You can only formally ask once every 12 months, so it is important to get a formal request right first time.

5. If you want to reduce your hours, make sure your employer agrees to look as your duties, otherwise you could fall into the trap of getting part time pay, for a full time workload!
6. One good tactic is to suggest a trial period, if you can show your employer you can make it work, then it would be difficult for them to refuse a permanent arrangement. Indeed, the ACAS Code of Practice on flexible working requests suggests an employer may want to use a trial period where it is unsure about the long-term effects of a flexible working request.
7. If you request is accepted this means your contract has changed permanently, so only make a formal request if you want your contract to change permanently.
8. Your employer must respond in a reasonable way which includes discussing the request with the employee promptly and allowing the employee to be accompanied to any meeting. They should consider the request and appeal in 3 months, unless the employer and employee agree to extend the time period.
9. If you make the request, and this is turned down without justification, you may have an indirect sex discrimination claim, if you are a woman with childcare/caring duties. There was a recent Employment Tribunal decision in which a female employee, who had their request turned down was awarded a six figure sum in compensation.
10. If you are returning from maternity leave, make the application in good time, the process can take up three months, leave it too late and you may find yourself returning on full time hours.
11. If your employer criticises you for making the application (even if they agree it), seek advice as you could have been subjected to unlawful discrimination.
12. Your employer can reject your request on one or more of the following lawful grounds:

• The request does not meet the necessary formal requirements.
• There is a burden of additional costs if they were to agree the change.
• There will be a detrimental effect on the ability to meet customer demand, quality or performance.
• The employer is unable to re-organise work among existing staff or recruit additional staff.
• There is insufficient work during the periods the employee proposes to work.
• The employer is planning structural changes which impact the request.

13. If your employer refuses your request you can bring a claim on one or more of the following grounds:

• Your employer failed to deal with your application in a reasonable manner.
• Your employer failed to notify you of its decision within the decision period.
• Your employer rejected your application for a reason other than the eight statutory grounds.
• Your employer based their decision to reject the application on incorrect facts.
• Your employer treated the application as withdrawn when it was not entitled to.

14. The Employment Tribunal can order your employer to reconsider its decision and can order compensation. The Tribunal may award compensation of such amount as the Tribunal considers just and equitable, up to a maximum of eight weeks’ pay. The statutory cap of £571 per week applies (as from 6^th April 2022).
15. It will also be automatically unfair to dismiss an employee because they have made or propose to make a flexible working request, and there is no qualifying service necessary to bring this claim. Claims can also be brought if you have been subjected to any detriment as a result of making a flexible working request. Finally, you may be able to bring a discrimination claim if your application for flexible working is turned down on discriminatory grounds.

Some employers are very rigid and refuse requests without giving them proper consideration.  To have the best chance of success with an application it is therefore worth seeking legal advice on any request you make.

Likewise, if you feel you haven’t been treated fairly it is worth seeking advice on a potential claim in the Employment Tribunal. The time limits for bringing claims are tight, you have just three months less one day from the date of an unlawful act or omission in order to bring a claim so seek advice without delay.  Please note too that time can run from the date of each unlawful act or omission, and you can therefore have less time to bring a claim than you initially think, so you should always seek advice at the earliest opportunity.  

Our Employment Team are happy to help and offer further advice. They can be contacted by calling 01302 341414 or 0114 272 1884 or by filling out our online enquiry form.

We have more articles on our website relating to Employment Law, here are three that you may find useful:

• 3 ways to reduce employee turnover 
• What is unfair dismissal? 
• How many sick days do I have before disciplinary action?