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Employees have had the right to request flexible working to care for others for more than ten years in the UK. However, the law recently changed to give any employee the right to make a request for flexible working. This article looks at the changes that have been introduced and gives practical guidance on how employers should deal with flexible working requests.

Right to request flexible working

With effect from 30 June 2014, any employee with at least 26 weeks’ continuous employment has the right to make a flexible working request for any reason. An employee is only allowed to make one request within a 12-month period.

A flexible working request is one in which an employee seeks to change their hours, times of work or place of work. The request has to be made in writing and needs to contain the date of the request, the requested change or changes and when the employee would like the change to take effect. The flexible working request also needs to specify what effect the employee thinks the changes will have on their employer and how the effect can be dealt with. Finally, it should state that it is a statutory request and provide details of when they made previous flexible working requests, if any were made.

Handling flexible working requests

Once a flexible working request has been received, an employer has three months in which to consider the request, discuss it with the employee and notify the employee of their decision. This three-month period can be extended if both employee and employer agree.

There is a requirement for employers to deal with all flexible working requests in a reasonable manner and a new Acas Code of Practice, Handling in a Reasonable Manner Requests to Work Flexibly, has been published to assist employers with this. This code of practice will be taken into account by Employment Tribunals when claims are brought by employees.

In summary, an employer should do the following:

  • Arrange to meet the employee to discuss the request (unless it has been approved);
  • Allow the employee to be accompanied to the meeting by a colleague;
  • Consider the request carefully, balancing the benefits to the employee with the impact on the business if the request were granted;
  • Inform the employee in writing of the outcome as soon as possible; and
  • Give the employee the right to appeal if the request is refused.

If an employee fails to attend a meeting to discuss the flexible working request without good reason and then also fails to attend the rearranged meeting, the employer is able to treat their request as being withdrawn. This is also applies in the case of appeals against an employer’s decision to reject a flexible working request. In these situations, the employer needs to notify the employee that they are treating their conduct as a withdrawal of the request.

Refusing flexible working requests

An employer is only able to refuse a request for flexible working for one or more of eight specified reasons, which are set out in section 80G of the Employment Rights Act 1996:

1.      The burden of additional costs;

2.      Detrimental effect on the 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 the employee proposes to work; and

8.      Planned structural changes.

Employment Tribunal claims

Employers should be aware that employees are able to bring an Employment Tribunal claim if:

  • Their flexible working request is not dealt with in a reasonable manner;
  • They are not notified of the outcome to their request within the three-month decision period (or further agreed period);
  • Their request is refused for a reason other than one of the eight reasons specified above;
  • Their employer’s decision is based upon incorrect facts; or
  • Their employer treats their request as withdrawn when the grounds for doing so do not apply.

Refusing a request for flexible working might also give rise to other claims, including discrimination and constructive unfair dismissal claims. For example:

  • Turning down a request to change contractual terms could give rise to a direct sex discrimination claim from a male employee if he made it for childcare reasons and the request would have been accepted if a woman had made it, or an indirect sex discrimination claim from a woman making a request for childcare reasons if such requests are generally refused;
  • Refusing an employee with disabilities’ flexible working request might be a failure to make a reasonable adjustment;
  • If an employee makes a request to change their working days to accommodate their religious beliefs and requirements, and that request is declined, they may seek to bring a religion or belief discrimination claim;
  • An employee might resign and claim constructive unfair dismissal if the employer does not deal with a flexible working request in a reasonable manner.

Following the changes, employers should ensure that they are dealing with any flexible working requests reasonably and promptly, in order to minimise the risk of any Employment Tribunal claims being brought against them and to put themselves in the best possible position to defend any such claims that may be issued. It is good practice for employers to approach requests positively, focusing on ways in which the request could be accommodated.

For more information about dealing with a flexible working request or to discuss how the issues raised in this article may affect your business, contact our Employment Law specialists or call us us on 0117 904 6000.