Flexible working is the umbrella term given to any working arrangement that provides a degree of flexibility in how, when, or where an employee works. This can include remote working, flexi-time, part-time hours, job sharing, or a combination of these setups.
The general goal of flexible work is to provide employees with a greater work-life balance, increased job satisfaction, and improved well-being, while still meeting the needs of the employer.
A flexible working policy should explain to employees how they can make a request, to whom it should be made and what should be covered, include a statement that the employer will consider such request, state who can accompany the employee at any meeting regarding the request, explain the arrangements for an appeal and set out the time limits on dealing with such request.
What flexible working rights do employees currently have?
Employees in the UK have the right to make a request to work flexibly, if:
- They have worked for their employer continuously for 26 weeks or longer
- They have not made a request within the last 12 months
When a flexible working request is made, employees need to produce a written statement for their employer explaining how their proposed working arrangements may impact their role and colleagues, and suggest how any changes might be handled. They also need to specify why they are making the request.
The UK Government has announced plans to make changes to the rules around flexible working. Not only will the 26-week qualifying period be removed, giving staff the ability to request flexible working from day one, but the process involved when making such requests will be eased, in a bid to open up the dialogue about flexible working options between employees and their employers. In addition, employees will no longer be required to explain their request or its potential impact on the business in a written statement.
Employers will also have a shorter timeframe of two months to provide a response to any requests made, and must consult with the employee if they intend to reject a request, explaining why.
Workers have also been allocated an updated allowance of two statutory requests in any 12-month period as opposed to the current one.
What is a flexible work policy?
A flexible work policy sets out clear guidelines on how teams are expected to work, communicate and collaborate. Of course, policies will vary between companies, and no two will look the same—but it helps to cover the following areas:
- Who can work remotely
- Remote working from abroad
- Working hours
- Office working
- Financial contributions and expenses
- Employee wellbeing
Often, a good flexible work policy doesn’t dictate specific rules; it empowers employees to work in a way that’s best for them to increase their productivity and wellbeing.
Below, we look at each of these areas of work life, and discuss what you may need to consider to implement a successful flexible workplace strategy. We also look at companies who are either remote-first or have transitioned to working from home successfully for inspiration.
What kind of changes can be applied for?
Your employee will need to make a written request for flexible working. It must be dated, state that it is made under the statutory procedure and whether the employee has previously made an application to you and if so, when. They must set out their proposed pattern of flexible working, when they wish the change to take effect and how they believe your business can accommodate it. In making a request, your employee can ask to change the:
- Hours they work.
- Times they work.
- Location they work (for example, by asking to work from home).
The scope of the legislation includes applications for part time working, full time working (if currently part time) annualised hours, compressed hours, flexi time, home working, job sharing, self rostering, shift working, staggered hours and term time working amongst others. There is no problem on an employee requesting a temporary change, although they will need to state the duration of such a desired change.
Responding to a request for flexible working
You must deal with a request in a reasonable manner and notify the employee of the position within three months from the date the request is made or such longer period as the parties may agree.
The ACAS code suggests that you should arrange to talk with the employee as soon as possible after receive a written request unless of course you intend to approve the request in which case a meeting is not necessary. Such discussion will enable you to get a better idea of the requested changes and how those might benefit both the employee and your business.
It is also important for you to ensure that the employee is fully aware of the impact of the change on their terms of employment; if the changes have an impact on the employee’s benefits it may be appropriate to suggest to the employee that he or she seeks advice from the appropriate benefit provider.
You should also take account of operational and day to day issues. It may be necessary to include new contractual provisions to address any issues and so as to avoid future confusion for example, if the employee is to be working from home will their manager need them to attend the office for meetings? It may be appropriate to agree a trial period of the flexible working requested by the employee or a variation of that request by way of a trial period.
You should consider any request carefully looking at the benefits and the risks. It is important to weigh up the known benefits against any disadvantages to help you decide whether the request is viable or whether or not you need to negotiate on certain aspects so as to minimise any adverse impact. Having considered the pros and cons, the possible costs and potential logistical implications in granting the request, you must then let the employee know of your decision in writing which will be either accepting the request, confirming a compromise agreed during any discussion, or rejecting the request because the employee is not eligible to make a request or for one or more of the applicable business reasons set out above.
Although there is no express requirement for you to allow an employee to appeal against the rejection of a request ACAS suggests that a right of appeal may come to be seen in many cases as an essential part of dealing with a flexible working request in a reasonable manner.
Employers should ensure that their contracts and policies properly reflect what employees are expected to do at the moment, where they are working, and when they are expected to work.
If an employer is foreseeing a permanent change to more flexible hours or remote working, you need to reflect this in that employees’ contract and obtain consent to those changes, after consultation.
Some employers will have a variation clause in the contract which means they can vary the contract unilaterally, but this should still be done with reasonable notice and through a consultation to avoid claims of constructive unfair dismissal and breaches of the implied terms in the contract.
You also need to think about the consequences; what if, despite the contract, employees don’t work when they are expected to? You need to ensure that the accountability and the expectations are clear so that employers still have the option of resorting to disciplinary action when needed or amending the arrangements if there are performance concerns.
Any change to the way a company works also requires changes to a handbook. Not just the flexible working policy, but also the sickness policies and the disciplinary policies (for example): if there’s no office to attend, where will the relevant meetings be held? The health and safety policies will also need to be changed and employers should ensure that employees are aware of their confidentiality obligations where information is stored at home.
Rejecting or refusing the request
Your business may have legitimate reasons for being unable to accommodate a flexible working request. In rejecting a request, you must identify one or more of the following grounds as the reason for doing so:
- It would have a detrimental impact on the quality of your product or service.
- There is insufficient work available during the times when your employee wants to work.
- You are planning structural changes to the organisation of your business.
- The work cannot be re-organised among existing staff.
- There would be a detrimental impact on your business’ performance.
- You are unable to recruit the additional staff that your employee’s proposal would require.
- There would be a detrimental impact on your business’ ability to meet customer demand.
- The burden of additional costs that would be incurred.
Remedies under the statutory procedure
An employee who has made an application for flexible working under the statutory procedure may, subject to complying with time-limits and the Acas early conciliation procedures, bring a claim in the employment tribunal on the basis that:
- The employer failed to deal with their application in a reasonable manner.
- The employer failed to notify the person of the decision within the decision period.
- The employer rejected the application for a reason other than one of the statutory grounds (see above).
- The employer’s decision to reject the application was based on incorrect facts.
- The employer treated the application as withdrawn but was not permitted to do so. (The two permitted circumstances are a) when the employee, without good reason, has failed to attend a meeting arranged by the employer to discuss the employee’s request and the second meeting arranged for that purpose; and b) when the employer has allowed the employee to appeal against the rejection of their request, or to make a further appeal, and the employee, without good reason, fails to attend a meeting arranged by the employer to discuss the employee’s appeal and the second meeting arranged for that purpose).
Where an tribunal upholds a claim, it must make a declaration to that effect and may make either or both of the following:
- An order for reconsideration of the request.
- A compensation award up to a maximum amount of eight weeks’ pay.
Informal requests for flexible working and other potential claims
There is nothing to preclude employees from making informal flexible working requests and no minimum length of service is required.
Employees who make requests, whether under the statutory scheme or on an informal basis, could have other potential claims such as for discrimination.
Where, for example, an employer has a policy not to allow employees to work part-time hours, this could be indirectly discriminatory on the basis that the policy of not allowing staff to work part-time disadvantages women as more women than men have child caring responsibilities.
DavidsonMorris provide specialist guidance and support to employers on all aspects of flexible working, from drafting and implementing a flexible working policy. Contact us for advice.
Last updated: 4 June 2023