Employees now have the right to request two flexible working requests a year from the first day of their employment. A flexible working request decision should be completed within two months and should be reasonably and fairly considered. Only one request can be open at a time. Employees no longer need to explain how the request could impact the employer.
The employee needs to make their flexible working request in writing and state that it is a statutory request for flexible working and must be dated and include the date for the change and state whether this is the first or second request.
Managers should consider the request in a ‘reasonable manner’ and be open to the opportunity through constructive dialogue if the request cannot be met outright. There should be discussion, ideas and suggestions put forward from both sides and especially encouraged by managers to find a mutually agreeable solution. The process should not be treated as a yes/no decision.
The employer should meet with the employee to discuss their flexible working request so that both sides are fully understanding of the information around the request before a decision is made. The outcome and decision made must then be communicated in writing to the employee.
Trial period in flexible working
Providing a trial period of the flexible working request can give valuable insight how the request will work in practice, enabling evidence and data to be gathered and assessed to support decision making. A trial period should always be considered as a viable option to explore if the flexible working request not fully unfeasible and is an example of good practice.
Refusing a flexible working request
Acas code of conduct for flexible working requests states that an employer must is accept a flexible working request unless there is a genuine business reason not to. If employers need to reject the request, it must use one or more of the following statutory grounds for refusal:
- extra costs that will damage the business
- the work cannot be reorganised among other staff
- people cannot be recruited to do the work
- flexible working will affect quality and performance
- the business will not be able to meet customer demand
- there’s a lack of work to do during the proposed working times
- the business is planning changes to the workforce.
Once a decision to refuse a flexible working request is made it must be communicated in writing as soon as possible.
Agreeing a flexible working request
A flexible working request agreement must be communicated in writing, dated, state the agreed changes, and when the changes will take effect. The employee’s contract will need to be updated with the changes and this should be completed within 28 days of the decision.
Appealing a flexible working request refusal
Employees no longer have the statutory right to appeal a request but employers can still offer this and this can be feature in the organisation’s policy. The process of the appeal should be followed according to the policy and can typically mean that the employee needs to formally write to the employer outlining why they think the decision reached is wrong, which would then be followed with an appeals meeting with an independent manger of the original decision making process, and one who has the authority to make an impartial final decision.
Taking a flexible working request refusal to an employment tribunal
Employees have the right to take their appeal to an employment tribunal if the employer failed to treat the request in a reasonable manner, had their application refused from incorrect facts, treated their application as incorrectly withdrawn, was unfairly treated (discriminated against) or dismissed, or had suffered a detriment because of their flexible working request. The timeline to take the case to tribunal is three months from the decision or appeal date, from when the employer believed the request was withdrawn, or from the date that the employer failed to respond.
The employee must contact Acas before making a tribunal claim in order to start a claim. Acas may be able to provide the option of working with an Acas conciliator for a resolution to mitigate tribunal proceedings. If the matter goes before a tribunal, a tribunal judge will examine the facts of the case for judgement and if the Acas Code of Practice has been observed. Awards are financially compensatory, a Judge cannot order a business to accept a flexible working request.
further information and useful links:
Working Families: happy to talk flexible working
Acas: Flexible working requests
Acas Code of Practice on Flexible Working Requests