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06/05/2021

Flexible Working: Your Questions Answered

As a result of the Coronavirus pandemic, the way we work and live has been forever changed. Many people have enjoyed the flexibility of working from home, including avoiding a commute, saving on parking costs, setting their own hours and being able to see and take care of their children more.

Employers can expect to see more employees requesting new and flexible working patterns when we 'return to normal', so in this article, we look at some of the most common questions around flexible working.

Who can request flexible working?

Employees with 26 weeks' continuous service are normally entitled to request flexible working, regardless of whether they work full-time or part-time. However, if an employee has already made a flexible working request, they cannot make another request for 12 months. With the pandemic having lasted for just over 12 months now, this is a key limitation to bear in mind.

Furthermore, workers (that is, anyone who is not an employee but not a self-employed contractor) cannot request to work flexibly. For example, agency workers, self-employed contractors, consultants, and company directors will be excluded if they do not have a contract of employment as this right and benefit is only for employees.

In what ways can an employee work flexibly?

The term flexible working covers several ways of working. Employees may ask for changes to working hours, their work location (such as working from home), or the times they work.

Are flexible working request change permanent or temporary?

Generally the change(s) will be viewed as permanent however the employee may request that the flexible working change is only temporary; for example until the social distancing measures are (finally) over. This could assist both the employee and the employer to effectively test the change to see if it will benefit the employee or not.

How should a flexible working request be made?

The employee needs to submit their flexible working request to the employer in the following format:

  • In writing.
  • Dated.
  • It must state that it is an application made under the statutory procedure.
  • It must specify the change that the employee is seeking and when they wish the change to take effect.
  • Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
  • State whether the employee has previously made an application to the employer and, if so, when.

The employer should have a Flexible Working Policy which should be located within the Staff Handbook to accommodate such requests, if not Eaton Smith LLP can prepare a bespoke policy for the employer’s needs.

Is there a process that must be followed to request flexible working?

There is no specific procedure, but employers must consider any request for flexible working in a 'reasonable manner'. Unless otherwise agreed by the employee, the employer must reach a decision about a flexible working request within three months.

Does an employer have to allow employees to work flexibly?

In short, no - but they must consider any request to work flexibly in a reasonable way. An employer may only refuse a request for flexible working for a specific business reason; these are set out in legislation as:

  • Unacceptable additional costs.
  • An inability to recruit additional staff.
  • A negative impact on quality of work.
  • An inability to reorganise work among existing staff.
  • A negative impact on the ability to meet customer demand.
  • A negative impact on the performance of the employee, the team or the whole business.
  • Insufficient work available to do during the periods the employee proposes to work.
  • Structural changes to the business that have already been planned that would not fit with the employee's proposal.

Furthermore, recent tribunal decisions have highlighted that it is not unreasonable to put the interests of the business before the interests of an employee when making a decision about a flexible working request.

An employer must be very cautious not to unlawfully discriminate against an employee otherwise the employee could have a viable claim before the Employment Tribunal. For example, if an employee correctly submitted a flexible working request to change their working hours, so that the employee could accommodate their weekly hospital appointment regarding a disability, then if the employer refused this flexible working request it could have unlawfully discriminated against the employee which could entitle the employee to claim compensation.

Can an employer allow some employees to work flexibly but not others?

Each flexible working request must be considered on its own merits, meaning that some requests may be approved, and some denied. An employer can decline a flexible working request where there is good business reason for doing so, including that too many employees are working flexibly at the same time. For example, if several employees from one department request to work from home at the same time, there may be no one around to cover certain tasks during business hours.

However, it may be better to discuss such conflicts with employees rather than to refuse the request especially as this could prevent claims or general unrest when there could be a tenable alternative arrangement. For example, suggest different working patterns or taking turns to ensure the business can run smoothly while accommodating flexible working patterns.

If you have any questions regarding this or any other employment law matter please contact Lewis Holroyd on 01484 821 300 or at lewisholroyd@eatonsmith.co.uk