Flexible Working

What is flexible working? It is a variation of your working pattern and can be achieved in a number of ways, for example by working from home, part-time working, flexi-time, job sharing and shift working.

MSRS-Flexible Working Legislation

What rights do you have?

The right is to request flexible working from your employer. It is not a categoric right to be given flexible working. This is an important distinction (see how your employer must deal with your request below).

Who can make the request?

All employees will be eligible to submit a flexible working request, regardless of whether they have caring responsibilities for children, or an adult dependent. From 6th April 2024, this is a “day one right”, so there is no minimum period of service for you to make the request.

How should you make the request?

There is a statutory procedure set out in the legislation. You must make the request in writing, setting out:

  • the date of the application, the change to working conditions you are seeking, and when you would like the change to come into effect.
  • what effect you think the requested change would have on your employer and how, in your opinion, any such effect might be dealt with.
  • that this is a statutory request and whether you have made a previous application for flexible working, and if so, the date of that application.

Can your employer consider a request for flexible working for a limited period only?

Yes. This may be, for example, to cope with bereavement or to pursue a short course of study. You would then return to your old terms and conditions. A further statutory request for variation could not then be made for a period of 12 months, although an agreement can still be reached with your employer separately.

Are employers still obliged to deal with requests if the statutory application is not followed?

Employers are only required to deal with requests from employees who have followed the correct statutory process. Although it would be good practice for employers to inform you if the correct process hasn’t been followed, they are not obliged to do so.

How should employers deal with requests under the new rules?

Employers are required to consider requests objectively and in a “reasonable manner”. They must notify an employee of their decision within 3 months of the request being made, unless an extension is agreed.

What does “reasonable manner” mean?

An employer is expected to hold a meeting with you to discuss the request in a timely manner and, having carefully considered the request, should then communicate the decision to you. This can be by phone or by some other agreed way – it doesn’t have to be in an actual meeting. An employer must provide clear business reasons for any rejection.

What are the grounds that an employer can reject a flexible working application on under the new rules?

The new rules do not alter the previous basis on which an employer is entitled to reject a flexible working request. A rejection can be made if there is:

  • The burden of additional costs.
  • A detrimental effect on an ability to meet customer demand.
  • An inability to re-organise work among existing staff.
  • An inability to recruit additional staff.
  • A detrimental impact on quality.
  • A detrimental impact on performance.
  • An insufficiency of work during those periods the employee proposes to work.
  • Planned structural changes (for example, where the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans.)

Is an employer’s rejection final, or can it be challenged?

There is no obligation to provide you with an appeal, unless this is part of company policy, although it is good practice (as advised by ACAS) to have an appeals process. The decision whether or not to refuse a request is a subjective one for employers, but if a rejection is based on incorrect facts, it could be formally challenged by the lodging of an internal grievance or by an application to an employment tribunal. An Employment Tribunal can award compensation of up to 8 weeks’ salary.

How can a challenge be made for Discrimination following a refusal to grant a flexible working request?

An unjustified refusal of a flexible working request may amount to Indirect Sex Discrimination. This could occur when, for example, where there is a provision, criteria or practice (PCP), such as full-time working, which applies to all employees. The PCP in this situation would put women at a particular disadvantage compared to men as it is mainly women who work parttime to care for children and may not so readily arrange childcare. Your employer would need to show that the PCP (e.g. full-time working) is justified bearing in mind your requirements to work full time and the needs of the business. A refusal of flexible working to a man may also amount to direct discrimination if a woman in a similar situation would have been granted it.

For more information or to discuss your situation at work, please contact us.