The Legalities of Managing Flexible Working Requests
people working flexibly from coffee shop

The Legalities of Managing a Flexible Working Request

Historically, flexible working requests have been associated with working mums. Fast forward a few years and the benefit is now seen as an important part of the employment package by a wide variety of employees.

The benefits of offering flexible working are seldom out of the headlines, and if you are an employer reading this and aren’t yet convinced of those benefits, or whether it’s an approach you are able to adopt, it might be time to start thinking more flexibly.

So, as we see an increase in requests, we spent some time looking at the legal responsibilities for employers, and of course some practical tips for those trickier requests.

Who can submit a flexible working request?

The right to submit a request applies to any employee who has at least 26 weeks continuous service. Any employee 26 weeks into their role can submit a request for any reason. This has changed significantly, where previously a request had to be made because of caring responsibilities or childcare.

How should employers deal with a request?

Since the change in legislation in 2014, the procedure for dealing with requests is now less prescriptive. Here’s the process:

  • An employee sends a written request for flexible working to their employer
  • The employer then has 3 months in which to consider, meet with the employee if appropriate, and to issue its decision
  • The decision period can be extended beyond 3 months if both parties agree to the extension

There is also a statutory ACAS code of practice which sets out how employers should deal with flexible working requests.

Can an employer refuse a flexible working request?

The short answer is yes. The caveat is that you need to have one of the eight statutory reasons for refusing the request. These reasons are:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • planned structural changes to the business
What about the employee?

Employees can only make one statutory request in a 12-month period, and the employer has the right to treat this as withdrawn if an employee unreasonably fails to attend a meeting to discuss the request.

Employees can take a case to the employment tribunal if they believe their employer hasn’t dealt with it properly. This could be for not dealing with the request in a reasonable manner, or not meeting the timescales required within the ACAS code of practice.

So…what does all this mean in practice? Here are some practical things to bear in mind if you receive a flexible working request:

1. Once an employee puts a request in writing, put the key dates in your diary

Make sure you comply with the ACAS timeframe, and make and communicate your decisions to the employee within this. Or, if you need one and everyone agrees – get an extension within the right period of time, but again it is advisable to document this.

2. Investigate the feasibility of what they have asked for

It can be easy to look at a request and think ‘that’s not going to work’.

One of the most common reasons employers don’t embrace flexible working is where employees work shifts and having someone work different hours would leave an area of production unmanned. In this situation, employers could consider how a task might be re-organised , or if a job share with two part-time employees could resolve the problem.

If, once you have investigated how feasible the flexible working request is and it’s still not possible, document this with evidence and explain to the employee why you have come to the decision.

3. Consider meeting in the middle

If you can’t agree to the employees request in full, remember that employers can also consider offering an alternative option that may still work for both parties.

4. Think about a trial period

It can’t hurt to try.

Remember, if you are not agreeing to a flexible working request in full, even if you are agreeing to it in part – you still must offer the right of appeal to the employee, or you will find yourself falling foul of the statutory process.

We hope this is helpful, for more information don’t forget to visit our resource hub for employers.

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