04 December 2020
Employees these days desire flexible working because of the rise in digital working. So it is natural that you will receive some request for flexible working hours or schedules.
However, it may not be viable for all businesses, so what do you say to your employees when you need to refuse?
Employment law around the subject makes it a difficult subject to navigate. And it leaves you open to employment tribunal claims in certain situations.
Let’s look at employee’s rights when making flexible working requests and what you need to be aware of.
Who can request flexible working
All of your employees can. They have a statutory right to request flexible working. This only applies to those legally classified as an employee.
It doesn’t matter which department the employee is in, anyone can make a request, and you lawfully have to consider it.
Employees can only make a statutory request after 26-weeks of service. However, you may allow them to do so earlier. An employee can only make one statutory request in 12 months.
Making a flexible working request
There are two types of requests employees can make. These are:
- Statutory flexible working requests: A request made under the law on flexible working
- Non-statutory flexible working requests: One which isn’t made under the law on flexible working
Unlike statutory requests, employees can make as many non-statutory requests as they wish. The sole exception to this is if their contract states otherwise.
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)
Flexible working request meeting
You should hold a meeting to discuss the request if it is a formal flexible working request or not. You should do this before making your decision.
This is a chance for your employee to provide reasons for the request. You can both work out how you could put the flexible working pattern in place. For example, you can agree on a trial period to see if the arrangement could work short term.
An employee may ask to bring someone to the meeting, such as a coworker or a trade union representative. They have no statutory right to this, so it is up to you whether you agree.
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 3 months.
A sound business reason must be reasonable. There are some examples of unreasonable grounds for refusal. These include “the management team don’t like employees working part-time or working from home” or “it doesn’t fit into our culture”.
When responding, send a letter to the employee stating that the flexible working request is declined. State the business reasons behind your decision in the letter refusing the flexible working request.
Employees have no right to appeal a flexible working request rejection but you can allow this in your own internal policy. They may raise a grievance if they are unhappy with the outcome, so it can be a good idea to put an appeals process in place.
You should also ensure there are no grounds for discrimination. There should be no business reasons related to protected characteristics. This can lead to a discrimination claim.
Flexible working request after maternity
This is one example where it can become discrimination. It is common for mothers to request flexible working after maternity leave.
Legally, you may refuse the request, as with any other employee. However, providing a sound business reason is very important as it affects an individual with a protected characteristic.
Some reasons will not stand up in a tribunal. These include reasons like “we’ve already got too many people working part-time” or “it’s our policy that all our managers have to work full-time.”
Whatever the reason, you must explain the reasons behind the refusal and show that you have considered the request.
Failure to do so can lead to discrimination claims, which come with no limit on the amount of compensation which can be awarded.
Equally, awarding this to a woman and refusing a man for similar reasons can be grounds for sex discrimination, so you need to be careful.
Sample flexible working request letter
Let’s look at a flexible working request example. An informal request doesn’t have to follow a specific format, employees can even verbally request it if your policy allows. However, a statutory request must be in writing.
The request letter or email should say they’re making a ‘statutory flexible working request’ and must include:
- The date they’re sending it
- The change they’d like to make
- When they’d like the change to start
- How any effects the change could have on their work
- The date of any previous flexible working requests
- If the request relates to something covered by the Equality Act 2010, for example, to make a ‘reasonable adjustment’ for a disability
If you need more help with this, we have a free flexible working request template letter for you to provide employees.
Click the download button to get your example flexible working request form and fill in the sections applicable to you.
Flexible working and statutory requests can be difficult to navigate. Here at Croner, our expert hr consultancy service can ensure you avoid costly tribunals.
If you have further questions on flexible working arrangements, contact us now on 01455 858 132.
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