In September, the Government published a consultation on its proposed reforms to the current law on flexible working. These reforms would effectively extend the right to request flexible working, making it a default right for employees from the first day of their employment. Employees are currently required to have 26 weeks’ continuous service before they are entitled to make a formal request for flexible working. Importantly, the consultation does not propose to give employees the right to work flexibly, but rather to extend the circumstances in which they can request flexible working.
The consultation documentation highlights the potential benefits of flexible working to employers as well as employees. Not only can flexible working help staff to balance their work with personal commitments, such as caring and childcare arrangements, but it can also help to engender a more diverse and motivated workforce, ultimately increasing retention and productivity.
To help you get to grips with flexible working, we’ve highlighted what the current rules are and how the Government’s proposals may change things.
What are the current rules?
The current law on flexible working gives employees or apprentices who have been working for your business for at least 26 continuous weeks, the right to formally request flexible working. Flexible working covers various different working arrangements, including part-time, flexitime, annualised hours, job sharing and working from home.
Eligible staff can only make one formal request every year, regardless of whether you accepted or rejected their previous request, and you are under a legal duty to consider formal requests in a reasonable manner. This doesn’t stop any of your staff from making informal requests for flexible working at any time, but you are under no legal obligations as to how you deal with informal requests. On the other hand, if you don’t handle a formal flexible working request properly, you could face a legal claim from your employee in an Employment Tribunal and be ordered to reconsider their application or to pay compensation. This means it’s important that you know how to recognise a formal request when it’s made.
What is a formal request for flexible working?
A formal request for flexible working is a request made in writing by an eligible employee or apprentice, which states that it is a formal request for flexible working. It must be dated and include the following information:
- Specific information about what change(s) your employee is requesting to their employment terms and conditions;
- When they want the changes to their terms and conditions to be effective from;
- An explanation of what effect (if any) your employee thinks that the change requested would have on your business and how they think that effect could be dealt with; and
- Whether they have made another formal flexible working request before (and if so, the date of that application).
You must make sure that your staff know how they can make a formal flexible working request; it’s a good practice to set this out in your flexible working policy. If you don’t have a policy in place yet, our customisable template can help you get started. It’s also a good idea to provide a template letter for your staff to use to make their requests; you can use this Request for flexible working template letter.
How must I deal with a formal request for flexible working?
If you receive a formal request, you only have three months from the date you received it to inform your employee of your decision (which includes any time spent on an appeals process, if you have one), unless you both agree to an extension.
You aren’t legally obliged to agree to formal requests for flexible working but you must consider them in a reasonable manner, and you can only reject them on one or more of eight specific grounds (see below). This means that it’s really important for you to follow a reasonable process when considering the request.
ACAS advises that the following steps be taken by employers, but you must also ensure that you follow any specific process set out in your Flexible working policy (if you have one):
- Acknowledge receipt of the request in writing, as soon as you receive it;
- Invite your employee to a private meeting to discuss their request;
- After the meeting, objectively consider the request, balancing any possible benefits and negative impacts on both you and your employee; bear in mind that you can only refuse the request on one or more of eight specific grounds (see below);
- Inform your employee of your decision in writing as soon as possible (remember you must respond within three months). If you want to request a trial period before making your final decision, you’ll have to agree with your employee an extension to the three month decision-making period; and
- If you have rejected the request, allow your employee to appeal your decision (although you are not legally obliged to do so).
Our Flexible working toolkit will guide you through the proper process to follow when considering a formal flexible working request, and provides all of the documents you are likely to need.
Remember that if you accept a flexible working request, you will probably need to make changes to your employee’s terms and conditions of employment. You must confirm any changes in writing as soon as possible (and within one month of the change). Use this template acceptance letter to set everything out to your employee in writing.
What are the eight permitted grounds for rejecting a formal flexible working request?
You can only legally refuse a formal flexible working request on one or more of the following grounds:
- There is an unacceptable burden of additional costs
- The change would have a detrimental impact on your ability to meet customer demand
- You are unable to reorganise work among your staff
- You are unable to recruit cover
- The change would have a detrimental impact on quality
- The change would have a detrimental impact on performance (of the individual or their team)
- There is insufficient work during the proposed periods of work (eg because changing their hours would mean that they are not working during your peak busy period)
- Your business has planned structural changes and the flexible working request would not fit into your new arrangements (eg you are reorganising your internal structure or changing your core hours of business)
You’ll also need to be aware of the risk of discrimination when you are considering flexible working requests (eg when you are dealing with requests from disabled employees or those with childcare responsibilities).
Our Q&A on Flexible working requests provides more detailed guidance about each of these grounds.
What are the changes proposed by the Government?
The Government’s consultation contains various proposals to reform the right to flexible working, to ensure “that employers and employees are better able to consider and make arrangements which suit their particular circumstances”. The consultation covers:
- Proposals to make the right to request flexible working a right from day one of an employee’s employment, rather than the current requirement for employees to have 26 weeks’ continuous service under their belt
- A consideration of whether the eight reasons for rejecting a request (see above) remain valid given the time that has passed since they were introduced
- Proposals to introduce a requirement for an employer to consider alternative flexible working arrangements if the one proposed cannot be accommodated
- A review of the current administrative process for dealing with formal flexible working requests, including whether employees should be able to make more than one request a year
- Ways to encourage employees to request temporary flexible working arrangements
The consultation closes on 1 December 2021; if you’re interested in responding, find out more here.
Our Q&A contains more detailed guidance about flexible working requests, including how to manage flexible working arrangements. Alternatively, our Flexible working toolkit provides all the documents you need and a handy how-to guide that leads you through the process.
Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.