Flexible working and where you stand legally

Understand how the laws around flexible working affect your business

Failure to honour the right to request flexible working in the Employment Act 2002, or the regulations set out in the Equality Act 2010, could lead to costly litigation against you.

Whether you wish to adapt your existing practices, or defend yourself against a claim – First4Lawyers can help. For more information, please contact us.

What is flexible working?

Flexible working means working to a schedule that does not adhere to a normal working pattern. As a result, a person’s working hours may involve changes and variations, instead of being repetitive and fixed, as in the case of someone who works 9am to 5pm every day. An eligible employee may request a change to:

• Hours they work
• Days they work
• Location of work (includes home working)
• Compressed hours
• Job-sharing
• Shift work
• Term-time working

In fact, there are few real limits on what an employee can request in terms of variation.

Who can request flexible working?

To make a request under this legislation, people who work for you must meet the following criteria:

• They are an employee rather than a worker (agency staff etc.).
• They have been working continuously for you for 26 weeks or more at the date they apply.
• They are not a member of the armed forces.
• They haven’t applied to work flexibly under the right to request law for one year.

Can I refuse a request for flexible working?

An employer may refuse a request for flexible working if an employee is not eligible to apply. If an employee is eligible, you must have a good business reason to reject their application. Your reasoning in such a case could relate to one of the more of the following:

• Additional costs would be too great.
• The business would be unable to meet customer demand.
• It would be impossible to effectively reorganise work among existing staff.
• The company cannot recruit additional staff.
• It will have a negative impact on performance or quality.
• There’s insufficient business during the hours the employee wishes to work.
• The business is planning structural changes.

In addition, you may treat your employee’s request as withdrawn if they fail to attend both the first and second meetings you arrange to discuss their request.

What does the right-to-request procedure involve?

Law requires that, as the employer, you deal with all enquiries in a reasonable manner. However, all requests for flexible working from an employee must include the following information:

• Date of their application.
• The details of the changes they are seeking.
• When they would like the changes to come into effect.
• Some thoughts on how their request may affect you (as the employer) and any suggestions for dealing with these changes.
• A statement that this is a statutory request.
• Dates of any previous applications.

Having received a request from your employee, you do not have to meet with them if you intend to accept the application. If you intend to reject the application, you must meet with theym and they must be allowed someone to accompany them in the meeting. Employees have the right to appeal any such rejection. The whole process should not last more than three months.

How does the law protect employees who seek the right for flexible working?

Your employees can make an employment tribunal claim against you if you mishandle their right-to-request. They can do so under the right-to-request law.

The claim may relate to perceived sexual discrimination, eg. you refuse a woman’s request for flexibility after she returns from maternity leave. This is covered under the Equality Act 2010.

What to do if an employee brings a claim against you

If an employee makes a claim against you regarding the right to request, it would be advisable to seek the help and advice of specialist business solicitors. You should also:

• Investigate the allegations properly and with an open mind.
• Invite the employee to raise a formal grievance.
• Invite the employee to a meeting to talk through the grievance.
• Allow the claimant to be accompanied at the meeting.
• Decide on appropriate action.
• Keep records of any meetings.

I'd like further legal advice about flexible working for employees – what should I do now?

Whether you want to update your policies in line with the latest flexible working legislation, or you want advice on your legal position with to a right-to-request, our team are here to give you specialist legal advice. We’ll discuss your situation with you free of charge, and look to link you up with the best employment law solicitor for your needs.