As we continue to progress towards an ever more modern
working world, there is an increasing pressure on employers to consider
requests for flexible working hours and with technology continually advancing,
it is getting harder to justify the traditional 9am-5pm in the office
arrangement. Nevertheless, employers do
not have to grant a request for flexible working and only have to consider
Who can apply for flexible working and what can they apply for?
Employees who have been employed for a period of at least 26
weeks have the legal right to request flexible working and can make a request
once in every 12-month period (all employees can make a request earlier but
they may not have a claim if you don’t consider it). If a request is denied, an employee cannot
make the request again until 12 months have passed, as it is likely that the reason
for the refusal will still be relevant if another application is made directly
after the initial request is denied.
However, if the request is due to circumstances such as an
employee’s disability, religious beliefs or childcare requirements, then you
should reconsider the request, as there are greater risks to a business in
these circumstances if it is refused.
In terms of what an employee can apply for, an employee can
apply to: change the times they are required to work, change where they are required
to work i.e. whether this be from home or the place of business and change the
hours they are required to work. The request generally tends to be for a
permanent change, although a temporary change can be requested.
How can an employee apply for flexible working?
It is common for employees to follow a more informal process
when requesting flexible working, particularly if they are working in quite an
informal environment and employers may allow this.
However, in order for a request to be valid in law, an
employee must ensure that the request complies with the following
- The request must be in writing and explicitly
state that it is an application for flexible working;
- The request must specify the change to the
current contract that is being applied for and what date the employee proposes
that this change comes into effect; and
request must explain what effect, if any, the employee thinks making the change
applied for could have on their employer and how this effect may be dealt with.
If the application meets the above criteria, then you are under a duty as an employer to
consider the application and make a decision about whether or not it is
Refusing the application
Although as an employer you can refuse an application for
flexible working, this can only be refused on the following eight grounds:
- The burden of additional costs,
- Detrimental effect on ability to
meet customer demand,
to re-organise work among existing staff
to recruit additional staff,
impact on quality of work,
impact on performance,
- Insufficiency of work during the periods the employee
proposes to work, and
- Planned structural changes.
Any other reason for rejecting the application will not be
valid and is likely to result in the employee making an appeal.
Avoiding the risks
In order to avoid the risk of an
employment claim, is important that as an employer you do properly consider any
application for flexible working and ensure that any rejection is genuinely on
the basis of one of the above eight grounds. It is also key that you ensure
that your reason for the rejection does not target a specific group of people
with a protected characteristic and that you are not putting yourself at risk
of being accused of discrimination either directly or indirectly.
If the request is on the grounds
of an employee’s disability, you also have to be mindful of the duty to make
reasonable adjustments which could include a flexible working arrangement.
Each application should be
considered on a case by case basis to avoid the risks of employment claims and
it is important to remember that agreeing to what are seemingly small changes
to a working pattern, can make a big difference to improving workforce morale.
If you have any questions as an employer in relation to flexible working or if you are an employee considering making a flexible working request, then please contact our Employment Team on 0161 926 1508, firstname.lastname@example.org or follow our employment law-specific Twitter account @HRHeroUK.