During a person’s time working for you their personal lives change and they may find that they have loved ones to look after or other family or personal commitments to meet that they may not have done when they first worked for you. As an employer you want to keep your staff particularly where you have invested a lot time and possibly money in training them to and they become and asset of your business.
To help employees and employers find a way that people can balance their personal and working lives the law now allows an employee to make a Flexible Working request.
Employees can request various types of working pattern including but not limited to:-
Term time working
Compressed hours e.g. where the worker works their total number of agreed hours over a shorter period of time e.g. over 4 days rather than 5.
Workers who have children or care for adults may have the right to request flexible working, however there is no actual legal right for such a worker to change their hours of work or an automatic right to flexible working.
All employees who have a minimum of 26 weeks continuous service and not made a a previous flexible working request in the last 12 months has the right to make a request.
Such a request must be given serious consideration by you. Flexible working is not a right but the aim is to set out a procedure with which employees can use to start discussions about flexible working arrangement.
The onus is on the employee to present a workable solution, giving careful consideration as to how the change in working patterns will take effect. It should also be noted that the right to request flexible working has been extended to employed agency workers returning from maternity/paternity leave.
An employee may request a change to the hours they are required to work, a change to the times they are required to work and/or a change to the location they work e.g. to change to working from home. It should be noted that if a request is accepted, this will be considered a permanent change to the employee’s contract unless the employer and you agree otherwise. There is no right to revert back to former working patterns and any changes must be made by agreement with both parties, although the parties can agree a trial period and revert back if it does not work out.
The procedure for an employee to follow when making a request
If an employee wishes to make a formal request for flexible working they will need to make an application in writing which is dated and this can be done by letter or email. A request must be made by formal application and in order to be valid must be made at least twelve months after the date of any previous application.
The application must state:-
1. That the application is being made under the statutory right to request flexible working.
2. The change applied for and the date on which the applicant would like it to start (allowing time for the application to be considered and implemented; tit is suggested that it may take up to 14 weeks for an application to be considered or longer if a problem arises).
4. What effect, if any, the applicant thinks the proposed change would have on the employer and explain how, in the applicant’s opinion, it can be dealt with.
5. Whether a previous application has been made to that employer and, if so, when.
It is best practice for you to acknowledge the application (we have a template letter in our portal). If the employee has failed to provide all of the required information you may let the employee know what has been missed and allow the employee to re-submit the application, although the employer is under no legal obligation to consider an incomplete application.
Procedure for the employer to follow once they receive the request
You must hold a meeting with the employee within 28 days of receiving the application (we have a template letter in our portal). The purpose of the meeting is to discuss the request and how it may be accommodated and it should be arranged at a time and place that is convenient to both you and the employee.
The employee has the right to be accompanied to this meeting by a work colleague or Trade Union official who can address the meeting but cannot answer questions on behalf of the employee. If the work colleague or union representative is not available on the scheduled date the meeting should be postponed to a mutually convenient time within 7 days of the originally scheduled meeting. Such a meeting is not required if you have already agreed to the application in writing and has confirmed to the employee the contract variation and the date from which it will take effect.
You must consider the application carefully and objectively and must establish whether the applied work pattern can be accommodated within the needs of the business.
Within fourteen days of the meeting you must inform the employee in writing that he either:-
1. Agrees the request, specifying the agreed variation of contract terms and the date from which the changes will take effect (we have a template letter in our portal); or
2. Rejects the request, providing clear business grounds why the application cannot be accepted and including sufficient explanation as to why these reasons apply. The letter should also set out the appeal procedure clearly (we have a template letter in our portal)
If the request for flexible working is only partially accepted then the employer should offer an appeal in respect of the part of the request which is rejected.
The business grounds must relate to one or more of the following grounds:-
1. Burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work; and
8. Planned structural changes.
A sufficient explanation should be given alongside these business grounds explaining why the application for flexible working cannot be accepted, why the business grounds is relevant, including all relevant facts. For example, it may be that an employee’s request involves being away from work on the busiest day/time of day for the company or that their job is not suitable for working from home.
The appeal procedure
The employee can appeal against any refusal by giving written notice within fourteen days of notification of the decision. Such notice should set out the grounds of appeal. There are no restrictions on the grounds of appeal however they are likely to be either challenging the employer’s explanation as to why the business reason applies, or giving details of any new facts which have come to light. An employee may also appeal if they are proposing an adapted working pattern that accommodates the business grounds set out in the refusal. You should set out the appeal procedure in their rejection of the initial application and inform the employee that they have the right to be accompanied to any appeal meeting.
On receiving an appeal notification, assuming that you do not accept the grounds of appeal, they should arrange a meeting within fourteen days, in order to discuss the appeal and as with the original meeting, the applicant has the right to be accompanied to the meeting and the meeting should take place at a mutually convenient time and location (see Letter 5 – Invite To An Appeal Hearing).
Within fourteen days of the meeting the employer must inform the employee in writing that the appeal is either upheld or dismissed. If the appeal is upheld, you should detail the agreed contract terms that are being varied and the date on which this will take effect. If the appeal is dismissed, you must state the grounds for dismissal and an explanation as to why these grounds apply (we have a template letter in our portal)).
Extending the time limits
The following time limits can be extended by agreement:-
1. With regard to the employer, the time to arrange the meeting or appeal meeting and the time to give a decision after the meeting or appeal meeting can be extended.
2. With regard to the employee the time to choose whether to appeal can be extended.
Where an extension is agreed you must send written dated confirmation of the extension, stating the process the extension relates to and the date on which the extension ends.
Withdrawal of a request
An employee may withdraw an application for flexible working at any time by informing you either in writing or orally. You should confirm in writing that the application has been withdrawn. An employee who withdraws an application will not be permitted to make another application within 12 months of the date on which the application was made.
You may deem an application to be withdrawn if the employee misses two meetings to discuss the application or the appeal and does not provide a good reason for doing so, or if the employee unreasonably refuses to provide information which is required to allow the employer to consider the application.
What if I do not follow the correct procedures?
An employee may make a complaint to an Employment Tribunal if they think that the regulations have not been followed or if they dispute the facts upon which a decision has been made. Any complaint must be made within three months of the notification of your decision. The Tribunal is not permitted to question the commercial reasons behind your decision or to substitute its own judgement regarding your business reasons.
An employee also has a right not to suffer a detriment, be unfairly dismissed or be less favorably treated as a consequence of exercising their rights to request flexible working or to take time off to care for dependents. Any complaints must be made within three months of the date of the act or failure to act and if the employee is successful the tribunal may make a declaration and/or order the employee to pay compensation.
We advise many businesses and employer on how to implement flexible working nd home working arrangements and how deal with Flexible Working Requests. If you would like discuss this in more detail and how we can help you please call Iain Lock on 01920 463777 or email firstname.lastname@example.org