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Factsheet: Flexible Working

What is flexible working?

The right to request flexible working was introduced under the Employment Act 2002 and came into force on April 6, 2003. Secondary regulations set out the eligibility and procedural requirements. Together this legislation is known as the right to request legislation.

The right to request consists of:

  • A right to request to work flexibly
  • An obligation on the employer to properly consider applications reasonably
  • A limited number of grounds on which the employer can refuse a request
  1. Who can request flexible working?
  2. What kind of change can be applied for?
  3. The right-to-request procedure
  4. Grounds for refusal
  5. Enforcement
  6. Automatic unfair dismissal
  7. What an employee should do if they feel they have been discriminated against
  8. What an employer should do if an employee makes a claim under right to request or sex discrimination legislation

Who can request flexible working?

To make a request under this legislation, an individual must:

  • Be employed
  • Have 26 weeks’ continuous employment at the date the application is made
  • Not be an agency worker or a member of the armed forces
  • Not have made another application to work flexibly under the right to request legislation during the preceding 12 months

What kind of change can be applied for?

An eligible employee may request a change to:

  • Hours worked
  • Times worked
  • Location of work (including homeworking)

There are no real limits on what an employee can request by way of variation, including:

  • Annualised hours
  • Compressed hours
  • Flexi-time or homeworking
  • Job sharing
  • Self-rostering
  • Shift working
  • Staggered hours and term-time working

The right-to-request procedure

The set procedure was removed from July 2014 and replaced with a more informal one that simply requires the employer to deal with requests in a reasonable manner. However a request from an employee must include the following information:

  • The date of their application, the change to working conditions they are seeking and when they would like the change to come into effect
  • What effect, if any, they think the requested change would have on the employer and how, in their opinion, any such effect might be dealt with
  • A statement that this is a statutory request and if and when they have made a previous application for flexible working

Having received a request an employer, unless they intend to agree it, should meet with employee and allow them to be accompanied to the meeting. If the request is rejected an appeal should be allowed. The whole process should not last more than three months.

Grounds for refusal

An employer may refuse a request for flexible working if an employee is not eligible to apply or where one or more of the following grounds apply:

  • 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 or performance
  • Insufficient work during the periods the employee wants to work
  • Planned structural changes

In addition an employer can treat the employee’s request as withdrawn if either of the following apply:

  • The employee, without good reason, fails to attend both the first meeting arranged by the employer to discuss the employee’s request and the next meeting arranged for that purpose
  • The employer has allowed the employee to appeal against the rejection of their request, or to make a further appeal, and the employee, without good reason, fails to attend both the first meeting arranged by the employer to discuss the employee’s appeal and the next meeting arranged for that purpose

Enforcement

Employees can take a claim relating to an employer’s mishandling of a right to request to an Employment Tribunal. As well as the right to request legislation, Employment Tribunal claims can also be brought under the Equality Act 2010.
For example, a woman returning from maternity leave who has had her request to work part-time refused may have an indirect sex discrimination claim. Similarly, a man may be able to bring a claim under the same sex discrimination legislation if he can show a woman’s request would have been treated more favourably. Alternatively if the employee is disabled the change requested may be a reasonable adjustment they would be entitled to under the Act.

Automatic unfair dismissal

An employee who makes an application to work flexibly is protected against detrimental treatment in the same way a woman who takes or seeks to take maternity leave is protected. Any dismissal of an employee would automatically be regarded as unfair if the reason for their dismissal was connected to their request to work flexibly. An employee dismissed because they tried to exercise the right to work flexibly may also bring a claim for dismissal for asserting a statutory right.

What an employee should do if they feel they have been discriminated against

It is often advisable to seek legal help before making a formal complaint. To make a formal complaint about treatment relating to the right to request, an employee should:

  • Complain to a line manager or another manager
  • Raise a grievance and discuss it with the employer at the subsequent meeting

What an employer should do if an employee makes a claim under right to request or sex discrimination legislation

It is advisable to seek specialist legal help where an employee has made a complaint relating to a right to request or sex discrimination. The employer should also:

  • Investigate the allegations thoroughly and with an open mind
  • Invite the complainant to raise a formal grievance
  • Invite the employee to attend a meeting to discuss the grievance
  • Allow the employee to be accompanied at the meeting
  • Decide on appropriate action
  • Allow the employee to take the grievance further if it is not resolved, for instance, if an employee does not accept the business reasons for rejecting their application;
  • Keep records of any meetings

For specialist employment law advice on flexible working, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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