Flexible working

Flexible working means working a different work pattern to the way you work now.

It can be achieved in a number of ways, such as changing your hours, by working from home, part-time, flexi-time, job sharing and shift working.

Anyone can ask to work flexibly but those with 26 weeks’ continuous service will be eligible to make a statutory request. This triggers a process your employer has to follow.

It is important to remember it is not a right to be given flexible working but a right to apply.

How should I make a request?

If you are making a statutory request, the procedure is set out in legislation. It is important that you make the request in writing and include:

• The date of your application, the change to your working pattern you would like, and when you would like the change to come into effect.
• What effect you think the requested change would have on your employer and how, in your opinion, any such effect might be dealt with.
• That this is a statutory request and whether you have made a previous application for flexible working, and if so, the date of that application.

If you don’t follow the correct procedure, your employer doesn’t have to deal with your request.

The change to your working pattern doesn’t have to be permanent but it will be assumed to be so unless you make it clear in your application.

We can help you with your application to give you the best chance of it being accepted.

What happens next?

Your employer should consider your application objectively and in a ‘reasonable manner’. They must notify you of their decision within 3 months of the request being made, unless an extension is agreed.

Your employer will be expected to hold a meeting with you to discuss the request in a timely manner and, after carefully considered the application, let you know their decision. If they reject your application, they must have clear business reasons for doing so.

You can bring a claim in a Tribunal if your employer does not consider your application properly or discriminates against you when making their decision.

What reasons can an employer have to reject my application?

Apart from you not qualifying or having already made an application in the past 12 months, your employer can reject your request can be made if there is a good business reason to do so:

• The burden of additional costs
• A detrimental effect on an ability to meet customer demand
• An inability to re-organise work among existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• An insufficiency of work during those periods the employee proposes to work
• Planned structural changes – for example, where the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans

How do I challenge my employer’s decision?

There is no automatic right to appeal the decision unless it is part of a company policy. There are other alternatives.

If your employer’s decision was based on incorrect facts, it could be challenged by way of internal grievance, or by using the services of Acas or by an application to an Employment Tribunal. A Tribunal can award compensation of up to 8 weeks’ pay, which is capped at £508 per week.

We can help you try to persuade your employer to give you the flexible working you want.

What Tribunal claims can I bring?

It depends on your particular circumstances. If you are a woman and made the request for child care reasons, the refusal may be putting you at a particular disadvantage compared to men, as it is mainly women who work part-time to care for children and may not so readily able to arrange alternative childcare. This could be a claim for sex discrimination.

A refusal of flexible working to a man may also amount to direct discrimination if a woman in a similar situation would have been granted it.

What do I do now?

This is where we come in. Employment law is all we do.

We can help you to give your application the best chance of succeeding.

If your request has already been turned down we can help identify any legal grounds for you to take the matter further. You need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know all the tricks in the book.

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