The benefits of flexible working are well known. It gives you a way of working that suits your needs and it will give you some say over where you work, when you work and how you work. Whether this means a job share, working part time, flexible hours or working from home, it gives you benefits that support your lifestyle.
The pandemic has been a success story for flexible working with new research (YouGov) finding that more than half of businesses plan to offer more flexible working policies. But what if your employer doesn’t offer flexible working?
What’s the Law on Flexible Working?
The first thing I want you to know is not to worry. In English Law under the Employment Rights Act 1996 (ERA 1996) and the Flexible Working Regulations 2014 you have a right to apply for flexible working if:
- You have been continuously employed for a period of at least 26 weeks;
- You’re legally classed as an ‘Employee’*; and
- You’ve not made any other flexible working request in the last 12 months should the change relate to hours, times or place of work.
*For these purposes, ’Employees’ do not include workers, agency workers and directors (unless they have a contract in place).
How to Apply for Flexible Working
If you have a statutory right to apply, then you need to follow the correct procedure. Bear in mind the process can take a long time, so you should consult your employer as early as possible.
A flexible working application must be in writing and include:
- Details of the change/s you want;
- That you are applying under the statutory right to request flexible working;
- Whether you have previously made any such application to the employer and, if so, when;
- How the proposed change/s would affect your employer and colleagues and how the change/s could be managed, for example, you could suggest who to cover for you when you aren’t there; and
- The date the request is made and the date you would like the change/s to start.
You should state in your letter if you are making your request in relation to the Equality Act or if you are asking for flexible working to care for a child or disabled person. You should also include detail about the impact on family life if it is turned down.
Try to include as much information as possible. State why you’re making a request. However, you don’t have to give a reason, but it might help your employer make a decision.
If you are successful, that’s great! Any changes agreed will normally be permanent, unless you agree otherwise. Your employer should write to you within 28 days setting out:
- the agreed changes to your employment contract
- the date you will start your new working pattern
Making a permanent change to your contract of employment is a big thing and should not be entered into lightly. It may be wise to suggest to your employer that you would like to initially trial a period of flexible working to see how it goes.
Grounds for Refusal
Once you make a request for flexible working, your employer has three months to give a decision. Furthermore, they have the obligation to consider your request and not to unreasonable deny it. There are five permitted business reasons under the ERS 1996 that an employer can refuse your request for flexible working. These are:
- Burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods you propose to work; and
- Planned structural change.
Your request can also be refused if you are not eligible to make it (e.g., if you have not been employed for 26 weeks or you have already made a request in the last 12 months).
The only way an employer can breach the procedure is by not giving a permitted reason, taking longer than three months to give you a decision or by giving reasons that are not factually correct.
Unfortunately, there is no right to work flexibly and not every request will be successful. If your employer doesn’t agree to your request, they should arrange to discuss your request with you as soon as possible and let you know their reasons for refusal. The meeting must happen within 28 days of your employer receiving your application. You should both agree to the date.
Making an Appeal
There is no legal right to an appeal but you should check with your employer to see if they allow appeals. Either way, you should appeal the decision.
If your employer does not allow for appeals or if your appeal is unsuccessful, and you feel your request was turned down unfairly (e.g., for discrimination reasons), your next step would be to raise a grievance.
We can assist you in producing the grievance itself and advise you where the grievance will lead on to a claim in the Employment Tribunal. Failure to put in a grievance might impact any award a Tribunal made if you had a claim for discrimination under the Equality Act.
We can offer you access to a trade union and arrange for you to be accompanied to your grievance hearing by an experienced trade union official.
Going to an Employment Tribunal
Within 3 months of receiving your decision, you can complain to an Employment Tribunal if the Employer:
- Did not handle the request in a ‘reasonable manner’;
- Wrongly treated the employee’s application as withdrawn;
- Dismissed or treated an employee poorly because of their flexible working request, for example refused a promotion or pay rise; or
- Rejected an application based on incorrect facts.
Employees cannot complain to a tribunal just because their flexible working request was rejected.
An employee should complain to the tribunal within 3 months of:
- hearing their employer’s decision;
- hearing their request was treated as withdrawn; and
- the date the employer should have responded to their request (but failed to do so).
Making a claim can be a daunting prospect and we will provide you with support and expert advice during the process.