Spratt Endicott Solicitors explains the procedures when it comes to asking for flexible working.
First introduced by the Employment Act 2002, the Flexible Working Regulations provide employees with the general right to request an amendment to the hours that they work (and the location), so that they may look after their children (or an adult in need of care).
Must employers agree to flexible working requests?
No, but they do have an obligation to consider the request properly, discuss the request with the employee, and can only refuse on certain specified grounds.
Who can make a flexible working request?
To make a flexible working request, the employee must:
- Be “employed” (which excludes self-employed or agency workers)
- Have been employed for 26 weeks continuously by their employer
- If making the request to care for a child, the child must be under the age of 17, or 18 if the child is disabled.
- Be the child’s mother, father, adoptive parent, guardian or foster parent; or be the spouse, civil partner or partner of the child's mother, father, adopter, guardian or foster parent
Alternatively, the request can be made to look after an adult in need of care.
The employee must not:
- Be in the armed forces; or
- Have made a flexible working request in the previous 12 months
What changes can employees ask for?
An employee can request that their conditions are changed in respect of the hours, times, and location at which they work.
What is the procedure for making a flexible working request?
If an employee qualifies to make a flexible working request, a specified procedure must be followed.
The employee must make a written request to the employer stipulating the proposed changes and the date that those changes would come into effect.The request must follow a particular format, and should state the anticipated effect the change would have on the employer.
Within 28 days of receipt of that request, the employer is required to arrange a meeting with the employee to discuss it. The employee is entitled to be accompanied at this meeting.
Within 14 days of the meeting, the employer must write to the employee either accepting or rejecting the changes. If the employer is rejecting the request, reasons should be given.
The procedure for making an appeal
If the request is rejected and the employee wishes to appeal the decision, they must do so within 14 days of receiving the decision.
Within 14 days of receiving the appeal, the employer is required to arrange an appeal meeting.
Within 14 days from the appeal meeting the employer must provide an appeal decision to the employee in writing.
These time limits can be extended with mutual consent between the parties.
On what grounds can requests be rejected?
Although there is no general obligation on an employer to agree to a flexible working request, they must have a business reason for rejecting it. The eight grounds they may rely upon are if, as a result of the change:
- The employer would incur additional costs;
- There would be a detrimental impact on the ability for the employer to meet customer demands;
- The employer would be unable to re-organise work amongst staff;
- There would be a detrimental impact on quality;
- There would be a detrimental impact on performance;
- The hours the employee wishes to work would provide them with an insufficient amount of work;
- There are planned structural changes; or
- The employer would be unable to recruit staff
The refusal decision notice to the employee must stipulate which of the above grounds applies.
An employer is also able to refuse a request if the employee has not provided sufficient information as to the date of the proposed change, the effect of the change, or proposals for how any effect could be addressed.
Can an employee complain to an Employment Tribunal about a refusal to a request?
An employee can bring a claim to the Employment Tribunal under the Flexible Working Regulations where:
- The employer has not followed the correct procedure; or
- A request has been refused for reasons not listed in the eight business grounds above
The Tribunal only has powers to make a financial award for a successful claim brought under the Flexible Working Regulations. The Tribunal cannot change the employer’s decision and make it agree to the request.
However, depending on the circumstances of a case, a refusal to agree to a request made by a woman could potentially be indirectly discriminatory on the grounds of sex. A successful sex discrimination claim could result in a higher award than a claim solely under the Flexible Working Regulations.
Spratt Endicott Solicitors
Published on 3rd May 2013
(Last updated 26th November 2013)