Law guide: Employment

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Applications for flexible working

Applications for flexible working

Contents

Anyone can ask their employer for flexible work arrangements, but the Government has introduced a statutory right to apply for flexible working, to encourage applications. Your employees have the right to ask for flexible working - not the right to have it.

The law states that you must seriously consider any statutory application that your employees make. By law, you can only refuse a statutory application based on certain specific business reasons. See 'Grounds for refusal', below.

Qualifying for the right to apply

To be eligible to make a statutory flexible working request, a person must at the date of their request:

  • be an employee;
  • have worked for you for at least 26 weeks; and
  • not have made a statutory flexible working request during the past 12 months.

How must the application be made?

For a flexible working application to be valid, it must:

  • be dated and in writing;
  • state that it is being made under the statutory right to make a flexible working request;
  • specify the flexible working arrangement applied for;
  • state the date when they want the change to start;
  • explain what effect, if any, the proposed change will have on your business and how the they believe any effect can be dealt with; and
  • state whether any previous statutory flexible working applications have been made and, if so, when.

What you should do

Initial steps

You should acknowledge receipt of your employee's flexible working request.

If you find that the application is incomplete, you should:

  • ask your employee to resubmit it; and
  • tell them you don't have to consider it until it is resubmitted.

Dealing with a flexible working application in England, Wales and Scotland

The procedure for dealing with applications is set out in the Acas Code of practice for handling in a reasonable manner requests to work flexibly. The Acas code states that:

1. All requests must be considered in a reasonable manner.

2. All requests, including any appeals, must be decided within 3 months from the date the application is received by you. An extension of time can be mutually agreed between you and your employee.

3. Refusal of an application must be on one or more of a small number of permitted business grounds.

According to the Acas code you should, but are not legally required to:

  • Arrange a meeting to discuss the application.
  • Allow an employee to be accompanied by a work colleague.
  • Give your decision in writing.
  • Give your employee a right to appeal your decision.

Should an employee ever take a refused flexible working request to an employment tribunal, the tribunal would take into account the Acas code when considering the claim – the code is worth following. It is accompanied by another Acas guide, The right to request flexible working.

Dealing with a flexible working application in Northern Ireland

When dealing with an application you must:

  • have a meeting to discuss the application within 28 days (except where you are willing to agree to a request based just on the application itself);
  • allow an employee to be accompanied to all meetings by a colleague or certified trade union representative working in your business;
  • inform an employee in writing within 14 days of reaching a decision;
  • only refuse an application on one or more of a small number of permitted business grounds;
  • give the employee a right to appeal your decision;
  • have a meeting to discuss the appeal; and
  • tell the employee your decision in writing within 14 days after the appeal.

If you think that your employee is abusing the right to request, e.g. that they don't have a qualifying relationship with the child or adult in question, you can ask for evidence. If your employee refuses to co-operate, consider using your disciplinary procedure in order to investigate your concerns.

The meeting

You should arrange the meeting at an appropriate time and place that is convenient for all.

The employee's companion can speak at the meeting and confer with your employee during it, but should not answer questions on their behalf.

In Northern Ireland, you must pay both your employee and their companion for the time off from their normal working duties to attend the meeting.

If your employee fails to attend the meeting more than once without a reasonable explanation, you can treat their application as withdrawn, which will mean that they will not be able to make a further application for 12 months.

Extending time limits

There may be occasions where you need more time in order to reach your decision. For example, you may need more time to consult with other staff or you agree to a trial period to check the suitability of the proposed working arrangement.

Any time limit can be extended in the following ways:

By agreement with your employee

For extensions made in Northern Ireland, the extension needs to be agreed in writing and must:

  • be dated; sent to the employee;
  • specify what period the extension relates to; and
  • specify the date on which the extension is to end.

For extensions made in England, Wales and Scotland, it will be in your own interest to follow the above, but you will not be legally required to do so.

Automatically (Northern Ireland)

An automatic extension applies for the 28-day time period by which you must have a meeting with your employee to discuss their application. This time is extended if the person who normally deals with the application is away from work on holiday or sick leave.

The time limit will start on the day the person returns to work or 28 days from the date of the application, if this is sooner.

No other time periods when dealing with an application, can be automatically extended.

Your decision

England, Wales and Scotland

You must inform your employee of your decision as soon as possible. Note that all requests, including any appeals, must be decided within 3 months from the date the application is received by you.

If you need more time to consider the request, you must agree this with the employee (see above).

The Acas code states that your decision should be put in writing to the employee and, if accepted, it is recommended that it should:

  • detail their new working pattern;
  • state the date on which it will start;
  • state how the new working pattern will be implemented; and
  • state that the arrangement means a permanent change to your employee's terms and conditions of employment (unless agreed otherwise).

Northern Ireland

You must notify your employee of your decision within 14 days of the meeting to discuss their flexible working request.

If you need more time to consider the request, you must agree this with the employee (see above).

If you accept the flexible working request, you must write to the employee:

  • detailing their new working pattern;
  • stating the date on which it will start; and
  • stating that the arrangement means a permanent change to your employee's terms and conditions of employment (unless agreed otherwise).

Grounds for refusal

You must only refuse a statutory flexible working application on one or more of the following grounds:

  • The burden of additional costs
  • The detrimental effect it would have on your ability to meet customer demand
  • The inability to reorganise work amongst existing staff
  • The inability to recruit additional staff
  • The detrimental impact it would have on quality
  • The detrimental impact it would have on performance
  • The lack of available work during the period when your employee proposes to work
  • Your planned structural changes to the business

If your decision isn't based on any of the above grounds, your employee is likely to appeal your decision.

For requests made in Northern Ireland, a refusal must be given to the employee in writing, stating which business ground(s) applies. You do not have to go into a lot of detail, but you should include the key facts about why the business ground applies. These should be accurate and relevant to the business ground.

You must also set out the appeal procedure.

In England, Wales and Scotland, you are not legally required to put the reasons for your refusal in writing, but it is recommended that you do so and follow the procedure used in the above paragraph regarding Northern Ireland.

If you make a decision to reject an application based on incorrect facts, this will give the employee grounds to make a complaint to an employment tribunal.

Trials

If you are not sure that the proposed flexible working pattern will work in practice, you could consider trying a different working arrangement or a trial period.

You could agree to an extension of time for you to make a decision and the trial period could happen before you reach a final agreement. In this case the rest of the formal procedure would still be available to the employee.

If you and the employee think that a flexible working arrangement resulting in a permanent change to their contract of employment may not be the best solution, you could consider an informal temporary arrangement. This may be appropriate where, for example, the employee suddenly becomes the carer of an adult with a terminal illness or they have to care for someone with a fluctuating medical condition, like Parkinson's disease.

You should put any agreement for a trial period or informal temporary arrangement, in writing.