Homeworking and other forms of flexible working arrangements are increasingly common, as employees juggle caring responsibilities or try to avoid long and expensive commutes to work. Employees may be surprised to learn that there is no right to work flexibly, just a right to make a request. However, as Gillian Reid, employment law specialist at Ware & Kay in York and Wetherby explains, employers need to respond properly to any requests to work flexibly to avoid claims in an employment tribunal.
Working part-time, from home or only in term time are all examples of flexible working, along with job shares and exemption from night shifts. The legal process to request flexible working applies to working hours and the place of work.
The scope of employees who are eligible to request flexible working has gradually expanded. Initially, only employees caring for young children were eligible. Now any employee who has continuously worked for the same employer for six months can make a request, provided they have not made a previous request within the last 12 months. However, all requests for flexible working should be checked, irrespective of the employee’s length of service, to ensure there can be no allegations of discrimination.
Under the Employment Rights Act 1996, you must deal with any request promptly and in a reasonable manner. The whole process, including any appeal, should be completed within three months unless a longer period is agreed.
A request is only valid if it meets the requirements in the Flexible Working Regulations 2014. These require the employee to apply in writing and to explain any effects the flexible working arrangement might have on your business and how those effects could be mitigated. Helping the employee correctly resubmit a deficient request, rather than turning it down for non-compliance, may avoid damaging morale.
To comply with the Employment Rights Act 1996, it is advisable to follow the ACAS code of practice on responding in a reasonable manner to requests to work flexibly. The code explains that you can either grant the request or discuss it with the employee. Having discussed and considered it, you must inform the employee as soon as possible of your decision. If you refuse some or all of the request, the employee has a right to appeal against your decision.
Although supporting work-life balance may help recruit and retain employees, it may not be possible to accommodate the requested working arrangements. You can refuse the request, but only for one of the business reasons listed in the ACAS code, such as the additional cost burden and the inability to meet customer demand.
Agreeing to a request for flexible working means a permanent change to the employee’s terms and conditions. A trial period may be useful before committing to this. If a trial is to take place, it needs to be agreed in writing with the employee, with care taken to stress that the flexibility permitted by the arrangement is only temporary. If, as a result of the trial, it looks likely that the process of dealing with the request will go beyond the three-month period allowed, then an extension to this period should be agreed.
Unless discrimination is alleged, the employee can only bring a claim in the employment tribunal on limited grounds, including that you:
The employment tribunal can order you to reconsider the request and to pay the employee up to eight weeks’ pay, limited to the statutory maximum for a week’s pay. Employees are also protected from any detriment or dismissal as a result of making a request.
Whenever a request to work flexibly comes in, you need to be alert to potential discrimination issues. These could come up in a request:
Although it may ultimately be possible to lawfully refuse such requests, you will need to go beyond the requests for flexible working procedure to safely do so. Otherwise, you risk the potentially far more significant consequences of a discrimination claim or claim for constructive unfair dismissal.