Fabulous Flexible Working

Did you know that your employees have a statutory right to request flexible working? WTF is that, I hear you say... read on honey and I'll explain it all to you.





The Jargony Bit

The right to request flexible working came into effect through the provisions of the Employment Rights Act 2002 and is detailed in the Flexible Working Regulations 2014.


What does that mean then?

The Flexible Working Regs 2014 mean that eligible employees can request flexibility in the time of work, place or work or hours of work. There is no guarantee that the request will be granted as there are business demands which might mean the request wouldn't work.


If a flexible working request is accepted, it forms a permanent change to the employee's terms and conditions (unless agreed on a temporary basis).


The request does not have to be made for a particular reason such as child care. It can be to pursue hobbies and interests or for a better work-life balance.


Who is eligible?

To be eligible for flexible working, the individual must:

  • be an employee

  • have at least 26 weeks' service at the date of application

  • not have made a flexible working request in the previous 12 months.

Flexible working provisions do not include contractors, consultants or agency workers.


The Process

Employee makes an application

The employee should submit their application in writing and should:

  • state that they are applying for flexible working

  • be dated

  • specify the date they wish to start their new working patter/location/hours

  • detail the change they are requesting

  • explain the effects the employee things their request will have on the business

  • explain how the employee proposes these challenges are met

  • confirm whether an application has been made in the last 12 months.

To make this process easier for the employee, you might want to have it in an application format.


Employer responds to application

You must respond to the request in a reasonable manner. That's all that is required of you by law.

So that means that if you can agree to the request immediately, crack on.


You must confirm your agreement and specify the changes to be made and when in a letter to the employee because you are agreeing to a variation to the contract of employment.


If you aren't sure about the request, arrange a flexible working meeting with the employee ASAP. You should do this by sending them an invite letter, confirming their right to be accompanied by a colleague or a trade union representative.


At the meeting, you can discuss any concerns you have with the employee and propose an alternative or a compromise.


After the meeting, you should write to the employee ASAP to confirm your decision and again, outline the changes to be made and when, in order to confirm the contractual variation.


You may refuse an application for flexible working on the following grounds:

  • Employee has made a previous request within 12 months

  • The burden of additional costs

  • Detrimental effect on ability to meet customer demand

  • Inability to recruit additional staff

  • Inability to reorganise work amongst existing staff

  • Detrimental impact on quality

  • Detrimental impact on performance

  • Insufficiency of work during periods employee proposes to work

  • Planned structural changes.

This is not a menu to choose from. You must be able to provide evidence to back up your reason for refusal. Refusing an application because "the other employees will get pissed off" is not a reason. Refusing an application because the other staff refuse to take on extra work is actually a reason for a potential disciplinary for those staff members, provided of course what you're asking is reasonable!


Right to appeal

The employee has the right to appeal your decision to refuse their application. The employee must set out their reasons for the appeal. Appealing on the grounds of disagreeing with your decision is not enough, they must say why they disagree or feel that the decision was incorrect.


On receipt of a letter of appeal, you should arrange an appeal hearing with the employee ASAP by sending them an invite letter. Remember, they have the right to be accompanied by a colleague or a trade union representative.


Ideally, if you can, get a different manager or director to hold the appeal hearing as this helps you ensure the process is fair.


You should communicate the outcome of the appeal hearing in writing ASAP.


Examples

Let's say you run a riding school.


Wendy writes to you to ask to change her start time from 08:30 to 09:30 so she has more time to walk her dog. She is eligible as she has worked for you for over a year and hasn't made a request before.


You are happy with this as you have other staff in at 08:30 that can get cracking with feeding and mucking out, lessons don't start until 10 anyway and Wendy understands that she will be paid 1 hour less per day.


You write to Wendy to agree her new start time effective from Monday.


Heather then requests flexible working. Heather wants to change her working pattern so she has weekends off to spend time with her boyfriend. The problem you have is that you are very busy with children's group lessons at the weekend and need all hands on deck. If Heather was not in at the weekend, you would need to recruit another member of staff which, thanks to COVID, you can't afford.


You arrange to meet with Heather and explain this to her. Heather proposes that she has Sunday afternoons and Mondays off instead. This works for you as you don't run lessons on a Monday.


You write to Heather to agree her new working pattern effective from next month.


Stuff to watch out for

So flexible working is a nice easy process for you to manage and keep track of employee requests to change their hours or work location.


But as always, watch you don't fall into any employment law booby traps!


Employees have the right not to be treated unfairly for making a flexible working request. So if you dismiss Heather for making a flexible working request, it would be an automatically unfair dismissal and you'll probably get a claim from her.


Same things goes for refusing requests based on gender for example, this would be direct sex discrimination.


Basically, make sure any reason for refusing a request are legit and based on the grounds I mentioned earlier. And then, don't make silly, emotional decisions because someone has exercised a statutory right. Not that you would, but I always feel I have to say it!


And there you have it, flexible working in a nutshell of a blog. Y'all know where I am if you have a question.


Shona x



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