Since 30th June 2014, all employees have had the right to request flexible working, if they have 26 weeks of continuous service. From 6th April 2024 this became a Day 1 Right.
(updated April 2024)
Acas have revised their Flexible Working code of Practice, which you can find here, and provided more detailed guidance here. Acas also offers a Flexible Working Arbitration Scheme, which employers and employees can use if the flexible working request can not be met and the claim is heading to an Employment Tribunal.
Who is eligible to apply for Flexible Working?
The (legal) request to work flexibly can be with regards to:
- Hours of work (you may want to work flexi-time or do term-time working)
- Times of work (shorter or different starting/ending times of work)
- Place of work (you may want to work from home).
To be eligible to apply you must:
- Be an employee who has worked with your employer continuously for 26 weeks at the date you apply for flexible working. This changed on 6th April 2024 to become a Day 1 right.
- Be an agency worker who has at least one year’s service and has returned from unpaid parental leave. As your employer is likely to be the agency, not the client (end-hirer) it’s their decision, although this is complicated as they will need knowledge of whether this is acceptable to the client
- Only apply to work flexibly once in every 12 months. From 6th April 2024 you can make 2 flexible working requests a year, as long as the first request has been decided.
Making a request from 6th April 2024:
The request must be made in writing stating the date of the application, the change to working conditions the employee is seeking and when they would like the change to take effect. The employee should also say this is a statutory request and say if they’ve made a previous application for flexible working and when. They should also say if you’re making a request in relation to the Equality Act 2010, for example as a reasonable adjustment for a disability.
The government has produced a standard form that employee’s can use to make a flexible working request.
How the employer should handle the request
Employers have a duty to consider requests ‘reasonably’ and the ACAS Code gives guidance on this. An employer has a legal duty to consider an employee’s request seriously, but the request can be refused if there are clear business reasons why the employer can’t accommodate the employee’s desired work pattern.
The employer should arrange to discuss the employee’s request with them, in confidence, as soon as possible. This discussion doesn’t have to be in person (it can be on the phone for example). There is no statutory right to be accompanied to any discussion (by a Trade Union representative or colleague for example) but the employer is advised to allow this.
If the company arranges two meetings and the employees attends neither, without good reason, the company can deem the flexible working application as ‘withdrawn’.
The company will have up to two months to consider the employee’s request, including any appeal. This timescale can be extended if both parties agree.
The employers decision
- The employer may accept the flexible working request and establish a start date and any other action
- Or they may confirm a compromise that has been already discussed, such as a temporary agreement
- Or they may refuse the request, setting out the business reasons for doing so.
They should do this in writing.
If the flexible working request is approved, then this is a permanent change to the employees’ contract of employment and they have no automatic right to change back to their previous pattern of work (unless a trial period or specified time period is agreed). There are eight grounds on which a business may reasonably refuse a flexible working request, which are:
- Additional costs that are unacceptable to the business
- Inability to re-organise work amongst existing staff
- An inability to recruit additional staff
- The employer considers the change to have a detrimental impact on the business’s ability to meet customer demand
- The employer considers the change to have a detrimental impact on quality
- The employer considers the change to have a detrimental impact on performance
- There is insufficient work during the periods the employee proposes to work
- There are planned structural changes and the employer doesn’t consider the flexible working changes will fit with these plans.
An employer has the right to agree to a trial period or a temporary change to see how a change works in practice before confirming a permanent change. If a temporary period is agreed, the Employer doesn’t have to review or consult with the employee about this time period ending, although it is best practice to do so
It’s important that a business is consistent in its approach to flexible working requests, however, it’s accepted that business needs change over time and each request should be carefully considered on its own basis/merits.
If an employee is unhappy with their employer’s decision they may be able to appeal against it, although there is no legal requirement to provide an appeal. The company should arrange any appeal as soon as possible.
If the employer refuses the flexible working request again at appeal an employee should discuss the matter informally with their employer and/or contact their Trade Union official if they are a member and/or use their employer’s grievance procedure, before finally complaining to an Employment Tribunal.
Two first-tier employment tribunal cases in 2016 (Whiteman v CPS Interiors Ltd and Smith v Gleacher Shacklock LLP) confirmed that employees only have a right to request to work flexibly, they don’t have the right to work flexibly.
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