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Flexible Working Legal & Procedural Advice for Employees & Executives

If you have suffered a trauma in your life, have childcare needs, need to look after an elderly person, or simply want to reduce or change the way you work, you may be able to apply to your employer to work flexibly.

 

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Contact our employment lawyers on 02071674800 or contact us online.

 

Who can exercise the statutory right to request flexible working?

In order to make a statutory request for flexible working, the following eligibility criteria apply:

  • A statutory request can only be made by an employee and not applicable to agency workers, self-employed contractors, consultants, section 80F(8), ERA 1996.
  • The employee must have 26 weeks' continuous employment at the date the request is made, Regulation 3.
  • Only one request may be made under the statutory scheme in any 12-month period, section 80F(4), ERA 1996. While the employer will not be obliged to follow the statutory procedure in response to an informal request, a refusal without appropriate consideration could give rise to claims outside the statutory flexible working scheme, for example, a claim for discrimination

What kind of change can be applied for?

An eligible employee may request a change to their employment terms if the change relates to:

  • A change to the hours they work.
  • A change to the times when they are required to work.
  • A change to the place of work (as between their home and any of the employer's workplaces).

The type of variation, among others, an employee can apply for is:

  • part-time working,
  • full-time working (if currently part-time),
  • annualised hours,
  • compressed hours,
  • flexi-time,
  • homeworking,
  • job-sharing,
  • self-rostering,
  • shift-working,
  • staggered hours and
  • term-time working.

There are in fact very few limits as to what the employee could request by way of variation.

Requesting temporary changes

An employee is able to request a temporary change, but they will need to state the duration of the desired change. Where the employee is looking for an informal change for a short period, the original terms may be reverted back to at the end of a fixed period or after a specified event.

The Procedure: How does an employee make a request?

An employee's application must:

  • Be in writing.
  • Be dated.
  • State that it is an application made under the statutory procedure.
  • Be precise as to the change that the employee is seeking and when they wish the change to take effect. State the circumstances that have led to their request and suggest how the request can be accommodated
  • State whether the employee has previously made an application to the employer and, if so, when.

How should an employer deal with a request?

An employer who receives a flexible working request under the statutory scheme must:

  1. Notify the employee of its decision within the prescribed decision period.
  2. Have a reasonable discussion with the employee
  3. Only refuse a request on one or more of the following grounds – see below

Options available for the employer

  1. Accept the request or
  2. confirm a partial agreement agreed during discussion.
  3. Reject the request either because the employee is not eligible to make a request or
  4. for one or more of the applicable business reasons.

The decision period

The employer must notify the employee of the decision, including the decision on any appeal, within the decision period. The decision period is:

  • Three months beginning with the date on which the employee's request is made.
  • Such longer period as the parties may agree, Section 80G(1B), ERA 1996.

An employee's request is taken to be made on the day on which it is received

An agreement to extend the decision period in any particular case may be made either:

  • Before the original decision period ends.
  • With retrospective effect, within the three months beginning with the day after that on which the original decision period came to an end.

Trial periods

Although not a statutory requirement, a sensible approach by an employer would be to offer a trial period to take a request forward rather than an outright rejection. In the case of a rejection, an employer should be ready to explain the reason for that decision.

Reaching agreement and granting the request – contractual variation

The new work pattern will be a contractual variation to the employee's employment and will be permanent, unless otherwise agreed that it is a temporary change. This can be done by issuing a new contract or a confirmation letter to be signed by the employee.

Refusal of request

The employer may have business reasons why it cannot accommodate a flexible working request, and the provisions provide for eight specific grounds on which a request: may be rejected:

  1. The burden of additional costs.
  2. Detrimental effect on ability to meet customer demand.
  3. Inability to reorganise work among existing staff.
  4. Inability to recruit additional staff.
  5. Detrimental impact on quality.
  6. Detrimental impact on performance.
  7. Insufficiency of work during the periods the employee proposes to work such as seasonal work.
  8. Planned structural changes.

Appeals

The legislation does not expressly require an employer to allow an employee to appeal against the rejection of their flexible working request. However, the ACAS Code suggests that employees should be allowed to do so:

"If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application." (Paragraph 12.)

If possible, the appeal should be heard by someone who was not previously involved in the process, paragraph 26 of the ACAS Code of Practice on Disciplinary and Grievance Procedures. This is not always necessary, nor possible for many small businesses."

Dealing with several requests at the same time

An employer may receive requests for flexible working from more than one employee at the same time. It will be important for the employer to maintain a consistent approach to dealing with individual requests when it receives more than one request at the same time. Consideration must be given to issues such as, caring obligations or accommodating a disability, that attract extra protection.

Remedies

Where a tribunal finds a claim  well founded, it must make a declaration to that effect and may make either or both of:

  • An order for reconsideration of the request. If it does this the date of the tribunal's order will be treated as the date of the request.
  • An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to the permitted maximum.

The maximum amount of compensation is eight weeks' pay.

Contact our Employment Lawyers in London - Flexible Working Legal & Procedural Advice

So if you’re facing difficulties at work don’t hesitate to get in touch with us. One of our employment law specialists will be able to meet you within hours of your call.

Contact our employment lawyers on 02071674800 or contact us online.

100% Success Rate in Contentious Cases for both Employees & Employers


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