Do Your Employees Have a Right to Request Flexible Working?

 

Perceptions of working routines have changed in recent years, the perception of working routines has changed. Many think it is the end of the traditional 9-5. With changes in flexible working laws, there is more opportunity for employees to request this.

Offering flexible working is a great employee benefit. If done correctly it can provide a massive boost to employee morale and actually increase productivity.

However, for some roles, flexible working simply isn’t an option.

So where do you draw the line? What are the pros and cons? Can anyone request flexible working in the UK? And, if they do, what are your responsibilities as an employer?

If you need immediate support, get in touch with one of our dedicated experts on 0844 561 8133. 

What is Flexible Working?

It’s a way of working that suits an employee’s needs, for example having flexible start and finish times, or working from home.

There are several practices that can use flexible working.

It’s not just letting employees come and go as they please. The term actually refers to any type of work pattern that differs from your existing one.

Flexible working practices won’t affect your statutory employment rights, including:

• Claiming unfair dismissal
• Itemised pay statements
• A written statement of terms and conditions
• Statutory minimum notice
• Maternity leave

Do Employees Have the Right to Request Flexible Working?

Yes, your staff can make a claim for flexible working hours. And there are two types of requests they can make. These are:

1. Statutory requests: A request made under the law on flexible working
2. Non-statutory requests: One which isn’t made under the law on flexible working.

An employee can only make two statutory request in 12 months. If it is a non-statutory request, they can make as many requests as they wish, unless their contract states otherwise.

It doesn’t matter which department the employee is in, anyone can make a request, and you legally have to consider it. You don’t—legally—have to grant the request.

To make a request, the employee must:

• Make the request in writing
• State when they made their last request (if applicable)
• What changes they’re seeking
• State that it is a statutory request for flexible working (if applicable)

Refusing Flexible Working Requests

You must have a sound business reason for rejecting the request, and you should decide and respond to the request within 2 months.

The reason for rejecting a request has to be one or more of the following eight reasons:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• In ability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

A sound business reason must be reasonable. Examples of unreasonable grounds for refusal would be: “The management team don’t like employees working part-time or working from home” or “It doesn’t fit into our culture”.

When responding, there should be a letter refusing the flexible working request sent to the employee stating the business reasons.

You should also ensure it is not grounds for flexible working, so there should be no business reasons related to protected characteristics, this can lead to a discrimination claim. 

Types of Flexible Working Arrangements

Some of the most common types of flexible working include:

• Part-time work.
• Compressed hours.
• Job sharing.
• Annualised hours.
• Staggered hours.
• Phased retirement.

With so many methods of flexible working, it’s often difficult to retain all the information you need.

To avoid confusion, we’ll skip part-time working and shift work, as these are common work patterns and often have a flexible working contract, anyway.

Let us look at those 3 types of arrangements and give some examples of flexibility at work brought about by them. We’ll focus on compressed hours, flexitime, and home working.

Compressed Hours

This arrangement allows employees to work their contracted hours over a fewer number of days.

So, if an employee normally works 30 hours a week over four days, they could now work three 10 hour days instead.

Or, they could choose to work five 6 hour days.

So long as they fulfil their contractual hours, they can split them however they like.

Flexitime

This arrangement establishes core working hours and flexible working hours. So, for example, 10:00-16:00 would be core hours, then you could make flexible working hours 7:00-10:00 and 16:00-19:00.

What this means is that an employee has to work between 10 am and 4 pm, but may arrive at any time between 7 am-10 am and leave any time between 4 pm-7 pm.

You’d also agree on a contractual total number of hours to work and count these over a 4 week accounting period or quarterly.

So, if your employees work 9-5, they’d still have to do their 8 hours, they’d just get to choose when to work them, having flexible start and finish times.

Home Working

Employees will spend all or part of the week working from home or somewhere else away from the working premises.

Hybrid working 

Hybrid working is where staff conduct a mixture of working from home and from the office. This isn’t a new concept. The option to work from home through flexible working existed prior to the pandemic. 

However, it is something that has become much more popular in recent times. Staff that have successfully worked from home during the last few years.

They may even respond poorly to a full-time return to the workplace. Hybrid working could therefore be a compromise for this. This allows staff to work form home whilst maintaining a degree of office attendance.

Flexible Working Request After Maternity

Many female employees find it difficult to return to work after maternity due to childcare responsibilities. This can make flexible working for women important to keep these employees.

often see refusal for flexible leave as sex discrimination. While it is not

direct discrimination, they see it as an indirect form of it.

Indirect discrimination is where the employer cannot prove that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

For example, If your policy or practice is to not agree to requests from anyone (though all requests should need to be considered), you aren’t treating women any differently from a man making the same request.

However, statistically, the rule places women at a disadvantage because more working women than men have childcare responsibilities.

The rejection must base any justification provided on fact and not assumptions. For example, if you state that flexible working would disrupt business, you need to show how it is the proportionate means of achieving a legitimate aim.

Benefits of Flexible Working

There are some key benefits to flexible working in your business. The first and most obvious benefit is that it will help you retain key talent and recruit new talent.

Flexible working reduces fatigue and stress and allows employees to work to their strengths. All of this contributes to a boost in productivity and a better work-life balance.

In addition to employee benefits, there’s also a financial incentive. Whichever arrangement you choose, it’s likely to significantly reduce employee absenteeism, tardiness and sick leave.

Greater retention also means less money spent trying to recruit new talent. And flexible working arrangements are generally inexpensive and quick to implement.

Disadvantages of Flexible Working

Usually, you’ll find that the disadvantages come from the type of employee. If they’re likely to take advantage of company time, they’ll do so even more with a flexible working arrangement.

Implementing Flexible Working Policy

It is essential you know how to manage flexible working. If you want to implement a flexible approach to work, you should do so in writing, and detail the following:

• What type of arrangement you’re putting in place
• Provisions for who can request such an arrangement.
• Eligibility of roles
• How to make an application
• The criteria you’ll consider when deciding whether to approve a request
• Terms and conditions of employment
• Cover for absence
• Trial periods (if applicable)
• Appeal procedure upon rejection of the request

Flexible Working Legislation Changes

The legislation states that you can only reject a request for one of the following reasons:

• Additional costs.
• An effect on the ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit new staff.
• A detrimental impact on quality.
• A detrimental impact on performance.
• Insufficiency of work during the period of work proposed by the employee.
• Planned structural changes.

Again, you should consider all requests, decide, and respond within two months of the initial request. You can agree on extensions with the employee if necessary.

Health & Safety for Remote Working

Managing health and safety for employees working from home is essential for employers as they are still responsible for them.

While it is unlikely you can carry out risk assessments at employee’s homes, you should still check the following:

• Employees feel they can manage their work safely from home
• They have the right equipment to work safely
• They are in regular contact with management, so it does not isolate them
• You make reasonable adjustments for an employee who has a disability

Regulations confirm the removal of the 26-week service requirement from 6 April 2024

From April 2024, the 26-week service requirement needed to make a flexible working request was removed. 

The Flexible Working (Amendment) Regulations 2023 was approved by parliament and is now in place as of April 2024. This confirms that any requests made from 6 April 2024 do not need any service requirement. This will be your employees right from day one of employment.

Altogether, five changes to the current system are to be made.

 These are:

• Reduction of the current reasonable timeline to deal with requests from three months to two months
• Removal of requirement for employee to set out the impact of their requested arrangements
• Introduction of the requirement for employers to consult with an employee before refusing a request
• Increase in the number of statutory requests permitted per 12 months from one to two

We can expect that the other four changes will align with the removal of the service requirement and come into force on 6 April 2024 but this is yet to be confirmed.

Expert Support

If you have further questions on this topic, contact us now on 0844 561 8133