Under the Flexible Working Regulations 2014, any employee meeting the minimum service eligibility criteria who has not made a request in the previous 12 months can request flexible working. The right to request flexible working applies to all employees, not just parents and carers.
The provisions only apply to employees who have worked for the same employer for at least 26 weeks at the time of making their request. Employees can only make one request in any 12-month period. The request, known as making a statutory application, must follow a prescribed format. Employers are then under a duty to handle the request fairly and within a specific timeframe.
The government announced in September 2021 that it would be consulting on new proposals, which would make the right to request flexible working available to all workers from their first day of employment.
While employees with less than 26 weeks service do not have a statutory right to request flexible working, some employers may allow all staff to make a request on a non-statutory basis. This means the employer is not bound by the rules of processing a statutory flexibility request.
What is the difference between a statutory and non-statutory flexible working request?
You will need to decide whether to make a statutory request or a non-statutory request for flexible working.
You can only make a statutory request if you have worked for the same employer for at least 26 weeks and you must follow the process prescribed by law. The statutory process requires the request is made in writing and you can only make one in any 12-month period. The request letter should state the date of the request and whether any previous application has been made and the date of that application.
Your employer has to handle the request in accordance with the law on flexible working. It must consider the request seriously, and complete the whole process (including dealing with any appeal) within three months.
A non-statutory request can be informal or informal, and the process will be determined by organisational policy. Generally, you are advised to make the request in writing, even if you are making it informally, so that you can be clear what you are asking.
You can only make a statutory request if you are eligible. If you qualify for both options, you will need to decide which type of application to make. Consider the nature of your request; for example, if it is a minor, temporary change, the non-statutory option may be more appropriate and will not affect your ability to apply under the statutory route during the court of the following 12-month period. Your employer’s flexible working policy may also be more attractive than the statutory provision, for example where there is no minimum service requirement.
What are the different types of flexible working?
Flexible working refers to an arrangement agreed between the employer and the employee as to the employee’s hours to be worked or their place of work.
There are many different forms of flexible working you could consider for a change in working pattern:
- Compressed hours – working full-time hours in fewer days
- Working from home – doing your job from home or somewhere other than the ordinary place of work
- Flexi-time – core hours with flexibility at other times
- Part-time – working fewer hours than full time
- Job share – two people do the same job but split the hours
How do I make a statutory flexible working request?
To make your flexible working request, you should write to your employer.
The letter should include the date of your application and of any previous statutory flexible request, a clear statement that you are making a statutory request, details of your proposed arrangement and proposed start date, an explanation of the potential impact of your proposal and how this could be overcome.
Your employer should arrange a meeting with you in response to discuss the request before making a decision. The meeting is not a mandatory requirement but it is good practice and can help to discuss any concerns either party may have.
In most cases, the process should have completed within 3 month, including any appeal stage, unless an extension is agreed between the employer and employee.
The law requires the process to be completed within three months of the request being received, this includes any appeal stage, unless agreed by both parties.
What happens if my request is accepted?
If your employer accepts the new arrangement, they should confirm to you in writing a statement of the agreed changes and the start date for flexible working. Your employment contract should also be amended to refer to the new terms and conditions.
This should be done as soon as possible, and no later than 28 days after the request was approved.
Can an employer refuse a flexible working request?
By law, employers can refuse an application for flexible working where they have considered the request in a reasonable manner and they can prove a genuine business reason for rejecting your request.
The refusal must on the basis of at least one of the following reasons:
- Burden of additional costs
- Inability to reorganise work amongst existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Adverse effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- Planned structural changes to the business
Your employer should write to you stating the reason(s) for refusal of the request and detailing any provision for appeal. You employer may offer alternative solutions to provide you with flexibility, but this is not a requirement.
Can I appeal a flexible working decision?
Employees do not have a right to appeal requests for flexible working. However, many employers offer the opportunity to appeal the decision as this may help to show they have acted in a reasonable manner in handing the request, should the case proceed to a tribunal claim.
If your employer does offer you the opportunity to appeal, you should in most cases follow their internal process.
If your application is refused at the appeal stage, you could look to raise a grievance. You should also take professional legal advice if you haven’t already, and seek guidance from your trade union representative if applicable.
You may be able entitled to make a claim for compensation if your employer’s reason for rejecting your flexible working request was not reasonable or if the process they followed was not fair.
A tribunal claim in most cases will need to be brought within 3 months of hearing your employer’s decision, hearing your request was deemed withdrawn or the date by which your employer should have responded (but failed) to the request.
To make a tribunal claim, you will need to show your employer did not handle the request in a reasonable manner, that they rejected the application based on incorrect facts, they wrongly treated the application as withdrawn or they dismissed or treated you adversely as a result of your flexible working request.
You could continue to work under your existing terms while making a claim under the flexible working rules or a discrimination claim. Alternatively, if you have to resign as a result of the rejection, you could be eligible to claim constructive dismissal.
Can an employer change a flexible working arrangement after it has been accepted?
If you have previously made a statutory request for flexible working that was accepted and subsequently made part of your contractual terms, it would be unlawful for your employer to make changes to the arrangement or to withdraw the flexible terms without first seeking your consent, unless there is express provision within your employment contract which allows the employer to make these changes without your agreement.
If your employer makes changes to your contract without your agreement, you could have a claim for breach of contract. If you resign as a result of the change in terms, you may also be able to claim constructive dismissal.
If your request for flexible working was non-statutory, the position may be less clear. Often non-statutory requests relate to short term arrangements or include a trial period, in which case, your employer may be entitled to alter the terms of flexibility without first seeking your consent. Take legal advice on your circumstances if you are concerned that your rights are being affected by a change in your flexible working arrangement.
Do I have a tribunal claim?
Flexible working requests can, if not handled appropriately, impact morale and result in a dispute between the employer and the employee. Where an issue cannot be resolved by informal or internal procedures, you may consider your rights to bring an employment tribunal claim against your employer.
You cannot, however, complain simply because you disagree with the decision. You can only make a tribunal claim if your employer did not handle your request in a ‘reasonable manner’, if they wrongly treated your application as ‘withdrawn’, if they dismissed or treated you adversely because of a flexible working request or if they rejected your application based on incorrect facts.
You have only 3 months to bring a tribunal claim, from the date of your employer’s decision.
You may have other related complaints, for example, if you have had to resign as a result of the decision in a constructive dismissal scenario.
Speak to our employment law specialists about your legal options to ensure all angles have been considered and your interests are protected.
Last updated: 22 September 2021