What is Flexible Working?
Flexible working refers to an adaptable working pattern that’s in sync with the workers’ needs, with special emphasis on the time, length, and place of their work.
To benefit from a flexible working arrangement, you’d want to contact your employer to try to negotiate your working conditions with them. Moreover, while UK employment law provides some leeway for both parties to reach agreements irrespective of the fulfilment of statutory conditions, employers are not bound to either receive or grant requests made by unqualified employees.
Every eligible employee can submit the request, including parents, carers, and those who return from paternity and maternity leaves. All flexible working requests should be examined in the same way, albeit employers could suggest employees take parental leaves or time off for dependants instead.
- What is Flexible Working?
- Statutory vs Non-Statutory Flexible Working Requests
- Statutory Eligibility to Request Flexible Working
- What Constitutes Flexible Working?
- How to Request Flexible Working Arrangements
- What Happens After My Petition Gets Approved?
- Can an Employer Reject a Flexible Working Petition?
- What Should I Do if My Employer Denied My Flexible Working Request?
- How to Make a Formal Appeal
- Employment Tribunal Claim
- We Can Help You
- Frequently Asked Questions
Statutory vs Non-Statutory Flexible Working Requests
Flexible working requests are divided into two categories:
- Non-statutory request: As the name suggests, this request is made by individuals who don’t satisfy the prerequisites. As said earlier, while the employee is free to make these requests, the employer is not obliged to receive or examine them in detail.
- Statutory request: Statutory requests have to be received, assessed, and decided in a reasonable manner by the employer. While they can be rejected, the employer has to justify their rejection on solid business grounds.
Statutory Eligibility to Request Flexible Working
To earn the legal right to apply, you must abide by certain flexible working rules. They include
Only employees working under the terms proper to an employment contract can apply for statutory flexible working.
The non-existence of a written employment contract might not be enough to discard a person’s employee status. However, in that scenario, the matter may have to be decided by a judge using a series of tests whereby several factors are studied, such as the degree of control that the employer exercises over the presumed employee and the ability of the latter to reject work, among others.
Accordingly, casual workers, agency workers, freelancers, and self-employed individuals are not protected by flexible working rules. Notwithstanding, agency workers who return from parental leave are entitled to submit flexible working requests in the same manner as regular employees.
If you’re an employee shareholder, you can only ask for flexible working conditions if you returned from parental leave within 14 days prior to the petition.
Length of Service
In addition to your employee status, you also must have worked for the same employer for 26 weeks straight. In addition to the above, you ought not to have made another request during the past 12 months, regardless of whether it was approved or not.
The length of service will be calculated from your first day at work.
What Constitutes Flexible Working?
Flexible working can encompass a wide array of arrangements. To illustrate, you could ask your employer to:
- Reduce your weekly working hours in order to work part-time hours.
- Change your contract to a Zero-hours contract, only undertaking work when required.
- Change your start and end time or allow for flexible times (“flexitime”).
- Compress your hours so that you work over the span of fewer days per week.
- Allow you to share your duties with another employee or worker.
- Permit you to work from home or other locations (“remote working”) either at certain times (hybrid) or at all times.
- Grant you the ability to self-roster so that you can shape your shift schedule to match your preferred times.
- Allow for time off on specific dates or weekdays.
- Make you work a fixed number of annual hours but with daily or weekly variations.
- Grant sabbaticals or extended periods of leave (generally unpaid and up to five years).
- Give you the option to transition from time-based to output-based work.
This list is not exhaustive, and you may be capable of offering several other arrangements as you see fit, within reason.
Furthermore, these arrangements could be permanent or temporary. They may also be set for specific timeframes (e.g., outside the peak season, during school holidays, etc.).
The request can be either informal or formal, depending on the circumstances. For statutory requests, the rule of thumb is that they should be formal and in writing. The statutory process must be followed as outlined in the Acas Code of Practice on flexible working requests, provided that the company doesn’t have an internal procedure.
The request letter (or email) must clearly indicate in its subject that it’s a “statutory flexible working request”.
Contents of the Request Letter
The written petition must include the following information:
- Sending date
- Details about the changes you’re requesting
- The time when these changes should take place
- Ways in which your employer may cover for the possible gaps left by the changes
- The dates of previous flexible working requests (if there were any)
- If the request is motivated by issues covered in the Equality Act 2010 (e.g., religious holidays, a disability, etc.)
Apart from the basic information outlined above, it’s recommended that you speak of the benefits that the changes may bring to the organisation (for example, if the change contributes to cutting electricity costs or allows for unwanted shift times to be covered, among others) or to people in the workforce (e.g., employees who’d want to work full-time and would like to share responsibilities with you).
Your employer, after receiving your petition, should contact you and schedule a meeting to discuss the matter.
This is your opportunity to elaborate on the reasons behind the petition and the ways to tackle the potential challenges that may arise. You can also offer alternative solutions or arrangements in case the employer struggles to accede to the main proposed changes, given the current circumstances.
You may ask your employer if it’s possible to bring someone else to the meeting in order to assist or accompany you. However, the employer is not forced to allow someone else to participate in the discussion, as there is no legal right to that effect.
Your employer must review your request fairly and issue a decision within three months. This decision should be handed out in writing, regardless of whether the employer approves or denies the request.
If your employer has not notified you of any decision within the timeframe indicated, you can raise a grievance.
What Happens After My Petition Gets Approved?
The decision to approve your flexible working request will ultimately change the terms of your employment contract if it’s a permanent arrangement.
The approval document has to include the following mentions:
- The approved changes
- The starting date and the validity period (if the change is for a fixed time)
- If the changes are subject to trial, the trial period and date in which the employer may assess the effects that the changes have on the company (review date).
The changes that are mandatory by law to be written down are those that affect terms that should be inserted in every employment contract, including those pertaining to:
- Working hours
The employer must issue this writing within a period of up to one month from the date when the changes are supposed to take effect.
Can an Employer Reject a Flexible Working Petition?
In principle, employers are allowed to reject the request by reason of:
- The costs of the change being too high.
- The difficulties to meet customer demand or the detrimental impact on performance that the changes will bring about.
- Impossibility to rearrange work among existing staff
- Inability to hire more staff due to budget restraints
- Low demand for work during the shifts the employee proposes
- The requested changes being incompatible with the employer’s current reorganisation plans.
If the employer is yet unsure about the potentially damaging effects of the changes, you can propose a trial period.
What Should I Do if My Employer Denied My Flexible Working Request?
If your employer has refused your proposal on reasonable grounds, you’d have to wait 12 months before proposing another flexible working arrangement. You could also informally speak with your employer to see if you can convince them otherwise or make an alternative proposal, though, in those scenarios, they are not bound to issue a response.
If you feel that the decision was unfair or based on a misinterpretation of the proposal, you can also try to approach your manager or employer informally before making a formal appeal.
During these informal discussions, you could:
- Explain the reasons why you believe that the decision was unfounded
- Bring information or pieces of evidence that were not possible to provide before the employer issued the decision.
- Listen to your employer and get a better grasp on the reasoning behind the decision.
- Let them know that you’ll be willing to compromise on certain aspects of the original request.
How to Make a Formal Appeal
The formal appeal must be done as soon as possible and in accordance with the company’s policies and internal procedures.
Likewise, just as with the original request, the appeal must be submitted in writing, specifying why the decision must be reviewed and what you want your employer to do (e.g., look at the new data provided or meet to discuss the terms again.)
If The Appeal is Rejected
If your appeal is refused, you can:
- File a formal grievance.
- Submit a claim before an employment tribunal
- Have recourse to the Acas arbitration scheme
- Try to reach an agreement via mediation
Employment Tribunal Claim
Employment tribunal claims are the last legal resources available to employees who were denied flexible working requests unfairly, notwithstanding the possibility of appealing a tribunal ruling.
You can make a claim at the employment tribunal if:
- Your request was not handled in the way prescribed by the Acas Code of Practice on flexible working conditions or in line with its principles.
- The denial was for reasons other than valid business reasons.
If there’s evidence that the decision was motivated by a “protected characteristic” (e.g., age, gender, religious belief, race, pregnancy, etc.), you can bring a discrimination claim.
You must make your claim within a period of up to three months minus one day from the date of the last rejection.
We Can Help You
Our legal team has extensive experience dealing with employment conflicts and specifically those that touch upon employees’ flexible working rights. We are capable of delivering timely advice and support to employees who wish to recover their work-life balance but are not acquainted with the legal means at their disposal to achieve that goal.
Get in contact with us by dialling 0333 305 937. Our employment lawyers are ready to take your call and analyse your case.
You can always withdraw your application, but this withdrawal should be made in writing to avoid any possible mishaps or misunderstandings. Your application will be considered forfeited if you miss two meetings with your employer upon being summoned.
You are not entitled to appeal decisions based on sound business grounds just because you disagree with them. The refusal must be evidently arbitrary or founded on flimsy reasoning if you wish to take further action.
In the former scenario, you can file a discrimination claim against your employer to an employment tribunal, and you could be awarded compensation for moral injury and financial losses. In the latter, you ought to claim unfair dismissal if your request was the sole or principal reason for the employer’s decision.