Flexible Working Policy Guide

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.

 

Flexible working rights and rules

 

Employees in the UK have the right to make a request to work flexibly from day one of employment. This is a change in the previous rules which, for applications made before 6 April 2024, required the employee to have worked for their employer continuously for 26 weeks or longer, and that they had not made a request within the preceding 12 months.

Rules that are now in force under the Flexible Working (Amendment) Regulations 2023 no longer impose a minimum service requirement for a flexible working request to be made. In addition, employees can now make up to two requests within any 12 month period, compared to the previous single request limitation for the same period.

Your employee will need to make a written request to you for flexible working. The request must be dated, state that it is being made under the statutory procedure and specify if and when they have previously made any requests for flexible working. They must also set out their proposed pattern of flexible working, and when they wish the change to take effect.

Employers must consult with the employee before making a decision as to refuse the application. A decision must be given within two months – a shorter timeframe than the 3 months required under the previous regime.

 

What kind of changes can be applied for?

 

Your employee can ask to make changes to the hours they work, the times they work and the 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.

 

What is a flexible working policy?

 

A flexible working policy sets out an organisation’s guidelines on how teams are expected to work, communicate and collaborate. Of course, policies will vary between organisations, and no two will look the same, but the following are generally the main components:

 

1. Purpose and Scope

 

The policy should start with a clear statement of its purpose, outlining the commitment to provide flexible working arrangements.

 

2. Types of Flexible Working

 

Detail the various forms of flexible working arrangements available. This can include:

 

• Part-time work: Working fewer hours than the standard full-time hours.
• Job sharing: Two people sharing the responsibilities of one full-time position.
• Flexitime: Allowing employees to choose their start and finish times within agreed limits.
• Remote working: Working from a location other than the office, such as home.
• Compressed hours: Working full-time hours over fewer days.
• Annualised hours: Working a set number of hours over the year rather than per week.

 

3. Application Process

 

Outline the process for requesting flexible working, including how to submit a formal request. This section should specify the required information, such as the proposed flexible working arrangement, the start date, and how it might affect the business and colleagues. It should also provide the timeline for management to respond, which is within 2 months under the current rules.

 

4. Assessment Criteria

 

Explain how requests will be evaluated. Criteria might include the impact on the team and workflow, the ability to meet customer demands, and the employee’s role and responsibilities. Emphasise that each request will be considered on its merits and in line with business needs.

 

5. Decision and Implementation

 

Describe the process for communicating decisions, including potential outcomes such as approval, amendment or rejection of requests. If approved, outline the steps for implementing the new working arrangement, including a trial period to assess its effectiveness.

 

6. Appeals Process

 

Provide a clear procedure for employees to appeal if their request is denied. This should include the grounds for appeal and the steps to be taken.

 

7. Review and Monitoring

 

State how the flexible working arrangements will be monitored and reviewed. Regular reviews ensure the arrangements continue to meet both the employee’s and the business’s needs.

 

8. Legal Compliance

 

Ensure the policy complies with current UK employment laws regarding flexible working, including the Employment Rights Act 1996 and the Flexible Working (Amendment) Regulations 2023.

 

 

Flexible working policy: procedural guidance

 

Primarily, the policy should provide a consistent and lawful framework for managers to handle flexible working requests with minimum legal risk, providing guidance on how to respond to a request, how to accept a request and how to refuse a request, following the relevant guidance:

 

 

1. How to respond to a request for flexible working

 

You must deal with a request in a reasonable manner and notify the employee of the position within 2 months from the date the request is made or such longer period as the parties may agree.

Employers are required to discuss the application with the employee before it can be refused. 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.

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.

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 they take advice from the appropriate benefit provider.

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; 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.

 

2. Accepting a flexible working request

 

If the request is to be accepted, the employer is required to notify the employee within 2 months of the application being made, providing a statement of the agreed changes and confirming the date the new flexible working arrangements will take effect. To formalise the changes, the relevant provisions in the employee’s contract should also be updated to reflect the new arrangement. Employers should ensure this is put in place as soon as possible, but no later than 28 days after the date the request was approved.

 

3. 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.

 

After considering the request and consulting with the employee, if the decision is to refuse the application, you must inform the employee. 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.

 

Employee Complaints & Claims

 

If an employee is dissatisfied with the decision regarding their flexible working request, they have several options to address the situation.

In most cases, the employee should follow the employer’s internal appeals process, as specified in the flexible working policy. Typically, this involves the employee formally writing to their employer, outlining their reasons for disputing the decision and providing any additional information or arguments to support their case.

In addition to the formal appeal, sometimes a direct and informal conversation with the employer or HR department can resolve the issue. The employee may therefore request a meeting to discuss why their request was denied and explore if there are alternative arrangements that might be acceptable to both parties.

If these steps do not resolve the issue, the employee will need to engage in early conciliation through Acas before taking legal action. This process aims to help both parties reach a mutually acceptable solution without going to a tribunal. The employee can contact Acas to initiate this process, which is free and confidential.

If the issue cannot be resolved through internal appeals or conciliation, the employee may file a claim with an employment tribunal. They must do this within three months less one day from the date of the original decision. The grounds for such a claim might include the employer’s failure to handle the request in a reasonable manner, not providing a decision within the required time frame, rejecting the application on invalid grounds, or incorrectly treating the application as withdrawn.

If the tribunal upholds the claim, it must make a declaration to that effect and may order the reconsideration of the request and/or award compensation up to a maximum of eight weeks’ pay.

 

Need assistance

 

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 May 2024