The Right to Request Flexible Working

Any employee who has more than 26 weeks’ service has a legal right to request flexible working which covers not just the hours that they work, but also where they work from. This post gives insight into the rules and what you, as an employer, should do when you receive a flexible working request.

Published Categorised as Employment Law, Managing People Tagged
2021-05-04 - What To Do If An Employee Requests Flexible Working - Lighter HR
2021-05-04 - What To Do If An Employee Requests Flexible Working - Lighter HR

It used to be that any employee who was caring for someone, be that a child or an adult, had a legal right to have a request for flexible working be considered by their employer.  That right was extended in 2014 so now any employee who has more than 26 weeks’ service can submit a request for flexible working.

During 2020 and 2021, many people were required to work from home due to the Covid pandemic. As working patterns have returned to normal, employees have returned to the workplace – some employees have skipped back, relieved to no longer be spending all of their time at home.

Other employees, however, have found that home working has really worked for them, and have proved that they can do their job from home. As such, employers are now facing a lot more flexible working requests as these employees look to make a permanent change to their normal place of work.

Knowing how to handle these requests is important as there is a statutory process that you are required to follow.

The questions answered in this post are:

1. What Can a Flexible Working Request Cover?

A flexible working request can cover

  • changing the number of hours an individual works per week,
  • keeping the same number of hours but structuring the working day differently, or
  • changing the normal place of work.

2. How Should a Request be Submitted?

Your employees should submit a request in writing, i.e., by email or letter. There is no specific form to complete.

The request must specify that it is a flexible working request and the proposed details to the changes to working patterns, locations, etc.

3. What Should You Do When You Receive a Request?

When you receive a flexible working request, the first thing to do is to consider the request.

If you can easily comply with what is being asked, you can simply approve the request in writing and then provide the updated employment contract or variation of terms describing the change enabling flexible working.

If the request is a little more complex or potentially has a broader impact on other employees and/or clients, a more thorough investigation and decision process should be employed.

  • The first step is to meet with the employee to ensure there is full understanding of the request and to clarify why the request is being made.
  • Once the request is fully understood, you should investigate the impact that the proposed change will have on the business, other employees, and third parties, such as clients and suppliers.
  • You should then meet with the employee again to go through the investigation findings.
    • If there is no problem then the decision is straight-forward and you can approve the request.
    • If, however, you believe that the request will not work for the business, you should be clear about why you have reservations regarding the practicality of what is being asked and look to work with the employee to address the concerns and determine whether any alternative options would work.
    • You can then make your decision or conduct a further investigation and follow-up meeting if the alternative options require.
  • Once you’ve made your decision, you should follow this up in writing and then provide the updated employment contract or variation to terms.

If, ultimately, the decision is to decline the request, the employee can then appeal the decision. The appeal has to be made within 5 days of them receiving your written decision.

4. How Long Do You Have to Make a Decision on the Request?

You have up up to 3 months to make a decision on the request although it’s best to make the decision and implement the change as soon as is practical.

5. Can You Have a Trial Period for a Request for Flexible Working?

You do have an option to agree to a trial period for the flexible working request and this is something that we would strongly recommend to do so, if at all possible.

It can be quite difficult to provide strong evidence as to why a particular flexible working model would not work for the business, but, if you undertake a trial period, you can gather evidence around why it does not work.

Of course, it’s possible that it will work and then everyone will be happy!

6. Can You Turn Down a Flexible Working Request?

If you do want to turn down a flexible working request, either before or after a trial period, then the reasons for your refusal need to be covered by one of the legally allowable reasons for refusing the request.

The reasons that you can refuse a request are:

  • the burden of additional costs
  • an inability to reorganise work among existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • a detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to the business.

7. How Many Flexible Working Requests can an Employee Raise?

Don’t worry. It’s not the case that an individual employee can raise request after request after request.

The legislation for flexible working stipulates that an employee can raise 1 request in 12 months. The twelve months starts from the date they submit the request in writing.

Note that 12 months doesn’t mean one per calendar year, so they don’t have a right to raise a request in November and then another in February of the following year, for example.

Additional requests in the 12 month period can be received at the discretion of the employer. Be careful, however, as inconsistency in applying HR policies can often lead to unintended consequences, so we recommend you have a read of our post on using management discretion!

8. Once a Flexible Working Request has been Approved, What Contractual Documentation is Required?

There are two options for the contractual documentation for flexible working:

  • Update and issue a new contract of employment
  • Issue a variation of terms letter

Both options are valid and have the same legal strength, however, there are certain situations that lend themselves to each option.

Contract of Employment

You would choose to issue a new contract of employment to cover an approved flexible working request if:

  • The change was permanent;
  • The existing contract is a bit old and it’s an opportunity to update the terms.
    • Note: If there are any changes to terms, you would need to go through a consultation with the employee before issuing the new contract.

Variation to Terms Letter

You may choose to issue a variation to terms for the request if:

  • The change is on a trial basis or you want the option to review at a later date;
  • The change is temporary, for example, during the summer months, and will end automatically on a given date.

We can help you with all things regarding employment contracts and variations to terms; check out our Employment Contract page for more information, give us a call on 0203 319 1649 or complete the contact form and we’ll be in touch.

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