Flexible Working regulations provide employees with the right to make a request to amend their employment. Introduced in the Employment Act 2002, the rights were recently extended.
Must employers agree to flexible working requests?
No, but they do have an obligation to consider the request properly, and can only refuse on certain specified grounds.
Who can make a flexible working request?
To make a flexible working request, the employee must:
- Be “employed” (which excludes self-employed or agency workers)
- Have been employed for 26 weeks continuously by their employer
- Be making the request to care for a child under the age of 17, or 18 if the child is disabled
- Be the child’s mother, father, adoptive parent, guardian or foster parent; or the spouse, civil partner or partner of the child's mother, father, adopter, guardian or foster parent
Alternatively, the request can be made to look after an adult in need of care.
The employee must NOT:
- Be in the armed forces
- Have made a flexible working request in the previous 12 months
What changes can employees ask for?
An employee can request that their conditions are changed in respect of:
- Hours worked
- Times worked
- Where they do their work
What is the procedure for making a flexible working request?
If an employee qualifies for flexible working, the following procedure must be followed:
- The employee makes a written request stipulating proposed changes and the date they would come into effect. The request must follow a particular format, and should state the anticipated affect the change would have on the business
- Within 28 days of receipt, the employer must arrange a meeting to discuss the request (the employee is entitled to be accompanied at this meeting)
- Within 14 days of the meeting, the employer must write to the employee either accepting or rejecting the changes. If the employer is rejecting the request, reasons should be given
Making an appeal- the procedure
- If the request is rejected and the employee wishes to appeal, they must do so within 14 days of receiving the decision
- Within 14 days of receiving the appeal, the employer must arrange an appeal meeting
- Within 14 days from the meeting the employer must provide an appeal decision in writing
These time limits can be extended with mutual consent between the parties.
On what grounds can requests be rejected?
The employer may reject the request for business purposes. The eight grounds they may use are:
- The change would incur additional costs
- There would be a detrimental impact on the ability to meet customer demands
- The employer would be unable to re-organise work amongst staff
- There would be a detrimental impact on quality
- There would be a detrimental impact on performance
- The hours the employee wishes to work would provide them with an insufficient amount of work
- There are planned structural changes
The refusal decision notice to the employee must stipulate which of the above grounds applies.
Can I complain to an Employment Tribunal about my request?
An employee can make an application to the Employment Tribunal where:
- The procedure has not been correctly followed, or
- A request has been refused for the wrong reason
However the Tribunal only has powers to make an award for those failures. The Employment Tribunal cannot change the employer’s decision and make it agree to the request. Remember that where a woman makes a flexible working request, there is the possibility of a Sex Discrimination claim. This can result in a very high compensatory award being made.
Getting in touch
To learn more about our Flexible Working service, please contact Carol Shaw on 01295 204140 or email cshaw@se-law.co.uk