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Employment and Flexible Working

Flexible working is a way of working that suits an employee’s needs. They 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

Currently, under UK law, any employees who have been employed for 26 weeks or more can make a statutory flexible working request once in a 12 month period. If an employee hasn’t been employed for 26 weeks, they can still make a ‘Non statutory flexible working request’.

However, a new law is making its way through Parliament which will automatically give employees the right to ask for flexible working from their first day at a new job. If passed, it will remove the current burden on the employee to explain how the request would affect the employer. This welcome change to UK employment law would help carers to balance caring responsibilities from the start of a new job.

The Carer’s Leave Bill which is also making its way through Parliament, is another proposed 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, your employee needs to formally ask you 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 whether the employee has made a request previously and, if so, when. The employee must also explain the changes they would like to make to their working pattern, when they 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 with your employee about the possibility of flexible working prior to them 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,

Your employee must receive a decision within three months of their request.

You 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) you give for refusal must be factually accurate and the decision must not be discriminatory. For example, your employee’s 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 you turn 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 open to them 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

Any worker 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. 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 their reasoning in writing. This option might be useful for suggesting temporary, or small changes to their 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 employee’s 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 you refuse an employee’s request for flexible working or treat them unfairly in relation to their request, your employee 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.