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Employment and Flexible Working

Flexible working is a way of working that suits an employee’s needs. You don’t have to be a parent or carer.

Flexible working includes varying the way an employee works, such as reducing the number of hours, adjusting the pattern of working hours, changing the location from the office or studio to working from home or somewhere else or compressing your hours into fewer days.

Statutory Flexible Working

A new law automatically gives employees the right to ask for flexible working from their first day at a new job. Which removes the former burden on the employee to explain how the request would affect the employer. This welcome change to UK employment law helps carers to balance caring responsibilities from the start of a new job.

The Carer’s Leave Act is another new right enabling carers to take up to one week of unpaid Carer’s Leave in any 12 month period.

Making A Statutory Flexible Working Request

In England, Scotland and Wales, you need to formally ask your employer for flexible working by making a statutory application. Requests for flexible working are dealt with differently in Northern Ireland.

The request must state that it is a statutory request, be in writing, dated, and state if the employee has made a request previously and, if so, when. You must also explain the changes you would like to make to your working pattern, when you would like the change to start, what effects the change would have on the business, and how such effects might be best dealt with.

You may wish to have an informal discussion about the possibility of flexible working prior to making any formal flexible working request.

A statutory flexible working request must be considered in a reasonable way by the employer, and under the flexible working regulations, an employer can only refuse a request on permitted grounds,

You must receive a decision within three months of your request.

The employer must demonstrate that the request has been properly considered and the request can only be refused for one or more of the following permitted business reasons, which need to be fully explained.

The reason(s) given must be factually accurate and the decision must not be discriminatory. For example, your request might be refused because of the:

• Burden of additional costs

• Inability to reorganise work amongst existing staff or recruit additional staff

• Detrimental impact on performance or on quality or on ability to meet customer demand

• Insufficient work for the periods the employee proposes to work

• A planned structural change to the business

Discussion and Trial Periods

A meeting to discuss the statutory flexible working request should be offered as soon as possible and the employee should be allowed to bring a work colleague to this meeting. It is open to the employer and employee to agree a trial period to enable both parties to assess if the new arrangement is working both for the employee and for the business.

Refusal

If an employer turns down a flexible working request, it is good practice for employers to allow an appeal. The time limit of three months to respond to a request includes the decision on any appeal. If an agreement cannot be reached, an employee might take further action and depending on the specific circumstances, the options include:

• Raising a formal workplace grievance

• Mediation to reach agreement

• ACAS arbitration scheme

• Employment Tribunal claim by taking legal action

Non-Statutory Flexible Working Requests

Anyone can make a non-statutory flexible working request at any time and there is no limit on the number of requests that can be made in any 12 month period. But the flexible working regulations (see above) will not apply to a non-statutory request. In other words, there is no set procedure.

However the employee should still set out the reasoning in writing. This option might be useful for suggesting temporary, or small changes to your working pattern.

The outcome of the request must be sent to the applicant within three months of the request being made, including the reasons if the request is denied.

The Equality Act

The Equality Act may apply in certain situations particularly if your request relates to caring for someone a disability or child caring responsibilities.

Caring is not a protected characteristic under the Equality Act 2010, which means that carers currently have no rights to flexible working enshrined in law. However, if your employer refuses your request for flexible working or treats you unfairly in relation to your request, you might experience unlawful discrimination under the Equality Act Discrimination rules.

Good practice guidance:

Employers should include carers support as a targeted part of their staff wellbeing approaches.