Due to the Coronavirus Pandemic, large numbers of employees have been working at home (where practicable) and this has, in turn, focused both employers and employees on the wider issue of flexible working. Employers have realised the potential benefits to their business of more home-based working; employees have not missed the daily commute. Here, Employment Law specialist, David Dixey provides a brief summary of the statutory right to request flexible working.
Recent research has found that the number of claims brought in Employment Tribunals relating to flexible working requests increased by 52% in the past year.
A brief summary of the statutory right to request flexible working is provided below.
There is no right to flexible working per se, but the Flexible Working Regulations which have been in place since 2014 do provide a statutory right for employees to request flexible working subject to certain eligibility criteria.
Employees with at least 26 weeks of continuous employment can make a request for flexible working under the statutory scheme for any reason. The right is only available to employees (not workers or agency workers) and is subject to the following:
i. A formal request must be made in writing.
ii. The employer has 3 months (extendable by agreement) within which to consider the request, discuss it with the employee and notify the employee of the outcome.
iii. The employer must deal with the application in a reasonable manner.
iv. The employer can refuse a request for 1 (or more) of 8 reasons set out in the legislation.
v. Employees can only make one formal flexible working request under the Regulations in any 12-month period.
Employers should also take note of the ACAS Statutory Code of Practice relating to flexible working requests.
An eligible employee may request a change in their employment terms if the change relates to:
i. A change to the hours they work.
ii. A change to the times when they are required to work.
iii. A change to the place of work (as between their home and any of the employer’s workplaces).
An employer can only refuse a request for flexible working on one or more of the following grounds:
i. The burden of additional costs.
ii. Detrimental effect on ability to meet customer demand.
iii. Inability to reorganise work among existing staff.
iv. Inability to recruit additional staff.
v. Detrimental impact on quality.
vi. Detrimental impact on performance.
vii. Insufficiency of work during the periods the employee proposes to work.
viii. Planned structural changes.
An employer may also refuse a request where the employee is simply not eligible to request flexible working, or there are technical flaws in their request (for example not made in writing).
If an employer does not deal with the request in a “reasonable manner” or fails to identify a valid ground for refusing the flexible working request, then an employee may be entitled to ask an Employment Tribunal to order a reconsideration of the request, or award compensation up to a permitted maximum of 8 weeks’ pay.
Employers should always respond to flexible working requests with care (even in circumstances where the employee may not strictly be entitled to make a formal request) and consider taking advice. A request may relate to an employee’s caring responsibilities or disability. Failure to fully consider all potential aspects of the employee’s circumstances before deciding could lead to a claim of indirect discrimination, for example on grounds of sex or disability.
A request for flexible working under the Regulations is assumed to be a request to make a permanent change to the employee’s terms and conditions of employment. If an employee wishes to request a temporary change this should be made clear at the time of making the request.
Contact Holmes & Hills Solicitors' Employment Law Team in advice in relation to this or any other employment issue.
Call 01206593933 and speak to David Dixey, Employment Law Specialist. Or complete the form below.
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