Flexible working requests: What employers need to know

• Blog

Further to my previous article discussing the trends of home working, hybrid working and the importance of the relevant policies and management performance, this article concentrates on and briefly summarises employees’ rights to make a request for flexible working, employers’ duties in dealing with flexible working requests, the current trends and the proposals for reform.

The Chartered Institute of Personnel and Development (CIPD) has recently published a report that found that more than half of employees currently have flexible working arrangements in their current role and this number is continuing to grow. 

The Office of National Statistics (ONS) report on business and individual attitudes towards the future of homeworking shows that online job vacancy adverts which include terms related to homeworking and flexible working have increased threefold.

However, the ONS Labour Force Survey shows that whilst there has been a clear increase in homeworking following the Covid-19 pandemic and is continuing, there has not been a similar rise in other forms of flexible working which have decreased or remained stationary. The CIPD are working to increase all forms of flexible working which is explored further later in this article.

The types of flexible working

There are various forms of flexible working and requests can be for a wide range of different working patterns on a temporary or permanent basis for example requests can relate to:

• A reduction or variation of working hours;
• A reduction or variation of the days worked;
• Job sharing, which is a form of part-time working where a full-time job is divided between two or more people;
• Annualised hours, where a worker has a set number of hours to work within the year but may work more or less on a given week in order to meet demand;
• Working from home for all or part of the week, known as homeworking or hybrid working;
• Term-time working only. ONS defines this as “Employees work during the school or college term. Unpaid leave is taken during the school holidays, although their pay may be spread equally over the year”;
• Working compressed hours, in which an employee compresses their regular normal working week into fewer days. For example, someone who works 35 hours between Monday to Friday could ask to work all their hours between Monday to Thursday by starting earlier, working later or reducing the length of their breaks.
• Working flexi-time, where workers have the chance to decide their start and end times as well as their break times, within certain limits.

Working 80% of the hours for 100% of the pay

A further example of flexible working, is the increasing trend to work 80% of the hours for 100% of the pay, which has recently been reported by the BBC in their article. The article details the world’s biggest pilot scheme into the working pattern over the next six months benefits. About seventy British and American companies with thousands of workers are taking part in the scheme (Pilot Scheme).   

This Pilot Scheme comes after the reported benefits of implementing 4 day weeks as opposed to 5 day weeks in countries such as Iceland, Norway, Switzerland, Spain and Germany to name a few.

We will provide an update article regarding the results of the Pilot Scheme once all the data has been collated and published.

Eligibility to make a request for flexible working

To be eligible to make a flexible working request a person must:

• Be an employee;
• Have worked for the employer continuously for at least 26 weeks at the date the request is made; and
• Not have made a formal request to work flexibly during the last 12 months.

The format of a flexible working request 

An employee’s application must:

• Be in writing;
• Be dated;
• State that it is an application made under the statutory procedure;
• 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; and
• State whether the employee has previously made an application to the employer and, if so, when. 

Employers’ duties when dealing with a flexible working request

Employers have a duty to ensure that an employee’s formal flexible working request is dealt with in a reasonable manner and the employer must notify the outcome of the request within a three-month decision period, unless an extension has been agreed between parties. 

There is no legal definition of the term ‘in a reasonable manner’ however the Code of Practice on handling in a reasonable manner requests to work flexibly (ACAS Code) is a statutory code which must be considered by tribunals in the event claims  made by  employees request for flexible working. The ACAS Code provides suggestions as to how an employer can deal with the request in a reasonable manner by ensuring they do the following:

• Arranging to talk with the employee as soon as possible after receiving their written request;
• Allowing the employee to be accompanied by a work colleague at this discussion meeting informing the employee of this right beforehand;
• Discussing the request with the employee to get a better idea of the changes requested and how the changes might benefit the employee and impact the business;
• Genuinely considering the request carefully and weigh the benefits of the requested changes against any adverse business impact of implementing them;
• Informing the employee of the outcome of their request as soon as possible in writing;
• If the request is approved as is or with modifications, discussing how and when the changes might best be implemented;
• If the request is refused it must be for one of the eight business reasons (listed in the below section);
• If the request is refused, allowing the employee to appeal the decision;
• Ensuring that all requests, and any appeals, are considered and decided within the three-month decision period, unless the time limit is extended by agreement.

Grounds for rejecting or amending a flexible working request

An employer is not obliged to say yes, but in the event that an employer wishes to refuse the request, the employer must rely on one or more of the following eight business reasons:

1. The burden of additional costs;
2. Detrimental effect on ability to meet customer demand;
3. Inability to reorganise work among existing staff;
4. Inability to recruit additional staff;
5. Detrimental impact on quality;
6. Detrimental impact on performance;
7. Insufficiency of work during the periods that you propose to work; and
8. Planned changes.

Potential claims and remedies available

Please note that this section provides a very brief summary of the potential complaints, claims and remedies available, however this area can be quite complex and below is only a very basic summary. 

An employee who has made a request for flexible working may bring a claim on the basis that the employer:

• Failed to deal with their application in a reasonable manner.
• Failed to notify them of the decision on their application within the decision period.
• Rejected the application for a reason other than one of the statutory grounds.
• Based the decision to reject the application on incorrect facts.
• Treated the application as withdrawn despite not having the grounds to do so.

Where an employee is successful in their claim, a tribunal can make an order for reconsideration of the request and/or an award of compensation to up to the maximum of eight weeks’ pay, which is currently capped at £571. A claim in relation to a flexible working request may also be added on to other claims such as an unlawful detriment claim, automatic unfair dismissal claims, constructive dismissal claims and claims relating to discrimination.

Proposals for reform

The CIPD’s whose view is that flexible working practices should be the norm and not the exception launched the Flex From 1st campaign to make the right to request flexible working a day-one right and encouraging the uptake of all forms of flexible working.

In September 2021, the Government published the consultation “Making flexible working the default”  setting out the following five proposals:

• Making the right to request flexible working a “day one” right.
• Making changes to the eight business reasons for refusing a request to work flexibly if necessary.
• Requiring the employer to suggest alternatives to the arrangement suggested.
• Changing the process for the right to request flexible working. 
• Raising awareness of the existing right of employees to request a temporary flexible working arrangement.

Tips for dealing with flexible working requests

It is advisable for employers to have a written policy and procedure in place in preparation for any flexible working requests they may receive. Having such a policy in place will help ensure that a request is considered promptly and in a reasonable manner and that the employee is notified of the outcome within the three-month decision period.

Employers should try to demonstrate and evidence the fact that they have considered the flexible working request properly and in depth.

Previously some employers would start by finding reasons why a flexible working request cannot work. However, tribunals and the CIPD are increasingly encouraging employers to look at how the flexible working request can work and give serious consideration how to overcome any obstacles. It is likely that any future reforms will require employers to start with a positive approach rather than a negative approach.

How can GA Solicitors help?

GA can help draft a flexible working requests policy as a standalone policy or as part of a staff handbook. We can also help by advising on and responding to flexible working requests. 

We can also help with bringing or defending claims related to flexible working requests.