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Law guide

Flexible working

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Contents

Introduction

Flexible working gives employees the chance to fit other commitments and activities around work and improve their work-life balance. Employers recognise that there are benefits to their business of allowing employees to work flexibly. This includes improved productivity, a lower absence rate and a more motivated, less stressed workforce.

Types of flexible working

Flexible working involves rearranging working time and/or locations. It can include the following:

  • Part-time working: working less than standard or full-time hours.
  • Flexi-time: You have the freedom to work in any way you choose outside a set core of hours determined by your employer.
  • Staggered hours: You have different start, finish and break times, allowing a business to stay open for longer.
  • Compressed working hours: Covering the total number of hours in fewer working days.
  • Job sharing: One full-time job is split between two employees and you agree the hours between yourselves.
  • Shift swapping: You arrange shifts amongst yourselves, on condition that all required shifts are covered.
  • Self-rostering: You choose the shifts you'd prefer, leaving your employer to compile shift patterns matching your individual preferences whilst covering all required shifts.
  • Time off in lieu: Time off taken to compensate for extra hours worked.
  • Term-time working: Receiving paid/unpaid leave during school holidays.
  • Annual hours: Contracted hours are calculated over a year. Whilst the majority of shifts are allocated, the remaining hours are kept in reserve so that you can be called in at short notice, as required.
  • Voluntary-reduced work time: You agree to reduce your hours for a fixed time with a corresponding reduction in salary, returning to full-time work when this period ends.
  • Zero-hours contracts: Working only the hours that your employer needs.
  • Home working/teleworking: Spending all or part of the working week working from home or somewhere else away from the business premises.
  • Sabbatical/career break: Taking an extended period of time off, which is either paid or unpaid.
Flexible arrangements should comply with the law on maximum working time.

You can combine any of these working patterns to come up with something to suit your circumstances.

The law on flexible working

Anyone can ask their employer for flexible work arrangements, but the government has introduced a statutory right to apply for flexible working. You have the right to ask for flexible working - not the right to have it.

Having a statutory right means that your employer must seriously consider your application to work flexibly. By law, your application can only be refused for certain specific business reasons. See 'Grounds for refusal', below.

Qualifying for the right to apply

To be eligible to make a statutory flexible working request, you must at the date of your request:

  • be an employee;
  • have worked for your employer for at least 26 weeks (roughly, 6 months) on the date you make your request; and
  • not have made another statutory flexible working request during the past 12 months.
Employees in Northern Ireland

Employees in Northern Ireland have to meet extra criteria to qualify. You will qualify if you make an application to care for:

  • a child aged under 6;
  • a disabled child who is under 18, and who is in receipt of disability living allowance; or
  • an adult who requires care.
You can also request flexible working if you have, or expect to have, responsibility for a child's upbringing and if you're either:

  • the mother, father, adopter, guardian, special guardian, foster parent or private foster carer of the child or a person who has been granted a residence order in respect of a child ; or
  • married to, or the partner or civil partner of, the child's mother, father, adopter, guardian, special guardian, foster parent or private foster carer or of a person who has been granted a residence order in respect of a child
For adults, you can request flexible working if you care for, or expect to be caring for, either:

  • your spouse, partner, civil partner or relative; or
  • someone who lives at your address
A relative is a mother, father, adopter, adoptee, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step-relatives, adoptive relationships and half-blood relatives are also included.

How to make a flexible working request

If you have the right to apply, then there is a process that you must follow.

In order for a flexible working application to be valid, it must:

  • be dated and in writing;
  • state that it is being made under the statutory right to make a flexible working request;
  • specify the flexible working arrangement you are applying for;
  • state the date when you want the change to start;
  • explain what effect, if any, you think the proposed change may have on your employer's business and your colleagues' working arrangements and how you believe any effects can be dealt with; and
  • state whether you have made any previous statutory flexible working applications and, if so, when.
Employees in Northern Ireland

Those in Northern Ireland must also confirm:

  • that you have or expect to have, responsibility to care for a child or adult; and
  • your relationship with the child or adult in question.
What you should do

You should allow plenty of time between the date of the application and the date you want the flexible working arrangement to start. This will allow your employer time to look at your application and assess whether or not they can accommodate it.

Employers should make the decision on whether or not to grant a request solely on business grounds.

If your flexible working request is accepted, this is likely to result in a permanent change to your contractual terms and conditions. If you are concerned about this, you could either suggest that you work flexibly over a trial period or ask your employer to agree that the arrangement will be temporary.

What your employer must do

Dealing with flexible working applications in England, Wales and Scotland

Your employer must follow the procedure for dealing with applications that is set out in the Acas Code of Practice for handling in a reasonable manner requests to work flexibly. They must:

1. Consider all requests reasonably.

2. Deal with all requests, including any appeals, within 3 months from the date your application is received. A time extension can be mutually agreed between you and your employer.

3. Only refuse your application on one or more of a small number of permitted business grounds.

According to the Acas code your employer should, but is not legally required to:

  • Arrange a meeting to discuss the application
  • Allow you to be accompanied by a work colleague to any meeting
  • Give their decision to you in writing
  • Give you a right to appeal their decision

If you were to later make a claim to an employment tribunal about your flexible working request, the tribunal would take into account the Acas code when considering the claim. The code is accompanied by an Acas guide: The right to request flexible working.

Dealing with flexible working applications in Northern Ireland

Your employer's legal obligations when dealing with an application include:

  • Arranging a meeting to discuss your application within 28 days (except where they are willing to agree to a request based just on the application itself).
  • Allowing you to be accompanied to all meetings by a colleague or certified trade union representative working in your employer's business.
  • Informing you in writing within 14 days of reaching a decision.
  • Only refusing an application on one or more of a small number of permitted business grounds.
  • Giving you a right to appeal their decision.
  • Calling a meeting to discuss your appeal.
  • Notifying you of their decision in writing within 14 days after the appeal.
Failing to follow this procedure entitles you to start a claim at a tribunal. If successful, the tribunal can order a compensation payment of up to 8 weeks' pay.

The meeting

Your employer should arrange the meeting at an appropriate time and place that is convenient for all.

Your companion can speak at the meeting and confer with you during it, but can't answer questions on your behalf.

If you work in Northern Ireland, your employer must pay both you and your companion for the time off from your normal working duties to attend the meeting.

If you are unable to attend the meeting, you should contact your employer as soon as possible to explain your absence and allow your employer to rearrange it.

If you fail to attend the meeting more than once without a reasonable explanation, your employer can treat your application as withdrawn. This will mean that you won't be able to make a further application for 12 months.

Your employer's decision

England, Wales and Scotland

You must be informed of your employer's decision as soon as possible. Note that all requests, including any appeals, must be decided by your employer within 3 months from the date your application is received.

If more time is needed to consider your request, this must be agreed with you first.

The Acas code states that your employer's decision should be put in writing and if your application has been accepted, it is recommended that your employer should:

  • detail your new working pattern;
  • state the date when it will start;
  • state how the new working pattern will be implemented; and
  • confirm that the arrangement means a permanent change to your terms and conditions of employment (unless agreed otherwise).
Northern Ireland

Your employer must notify you of their decision within 14 days of the meeting to discuss your flexible working request.

If more time is needed to consider your request, this must be agreed with you first.

If your employer accepts your flexible working request, they must write to you:

  • detailing your new working pattern;
  • stating the date on which it will start; and
  • confirming that the arrangement means a permanent change to your terms and conditions of employment (unless agreed otherwise).

Grounds for refusal

Your employer must only refuse your statutory flexible working application if it impacts the business on one or more of the following grounds:

  • The burden of additional costs
  • The detrimental effect it would have on the ability to meet customer demand
  • The inability to reorganise work amongst existing staff
  • The inability to recruit additional staff
  • The detrimental impact it would have on quality
  • The detrimental impact it would have on performance
  • Lack of available work (during the period when you propose to work)
  • Planned structural changes to the business

If none of these grounds have been used to refuse the request, you should appeal the decision.

For requests made in Northern Ireland, your employer's refusal must be given to you in writing stating which of the business grounds apply. This should include the key facts about why the business ground applies and must be accurate and relevant.

Your employer must also set out the appeal procedure.

In England, Wales and Scotland, your employer is not legally required to put the reasons for your refusal in writing.

Right of appeal

England, Wales and Scotland

Your employer should comply with the Acas code, which states that it should give you an opportunity to appeal the decision.

The Acas code doesn't state by how or by when an appeal should be made by you, if you want to appeal the decision. However, you must set out the grounds for making the appeal. There are no restrictions on the number or kinds of grounds of appeal you may use.

Check your employer's staff handbook for any flexible working policy, if it has one. In any event, your employer must follow a reasonable appeal procedure.

Where possible, the appeal should be heard by a different manager than the one who refused your request. Your employer should, but is not legally required to, allow you to be accompanied to any appeal meeting by a work colleague.

If a meeting is arranged to discuss the appeal and you can't attend it, you should contact your employer as soon as possible to explain the reasons for their absence so it can be rearranged. If you then fail to attend the rearranged appeal meeting without a good reason, your employer can treat the appeal as withdrawn. This will mean that you won't be able to make a further statutory request for flexible working for another 12 months.

Your employer must inform you of the outcome of your appeal, but is not legally required to put it in writing.

Northern Ireland

You have a legal right to appeal your employer's decision. If you want to exercise this right, you must make the appeal in writing within 14 days of receiving the written notice refusing your application.

In the appeal notice, they must set out the grounds for making the appeal. There are no restrictions on the number or kinds of grounds of appeal you may use.

Your employer must then arrange an appeal in meeting within 14 days of receiving your appeal notice. Where possible, your appeal should be heard by a different manager than the one who refused your request.

You must be allowed to be accompanied to the meeting by a colleague or certified trade union representative working in your employer's business. You must be informed of the outcome of your appeal by your employer in writing and within 14 days after the meeting.

Dealing with unresolved flexible working requests

There may be occasions where you feel that your employer has not satisfactorily dealt with your application. The following sets out what can be done in an attempt to resolve this.

Informal resolution

Your employer may first try to sort out any problems informally, by discussing it with you (preferably in a meeting).

Grievance procedures

If you still feel that the issue has not been resolved, you should use your employer's grievance procedure.

Third-party conciliation/mediation

If the problem cannot be resolved internally, you could try using an external third-party mediator or conciliator, such as Acas, Northern Ireland's Labour Relations Agency or a union representative. Note that in England, Wales and Scotland, you have to use the Acas early conciliation scheme before starting a tribunal claim (see Employment tribunals for more information).

Tribunal claims

You may make a complaint to an employment tribunal where:

  • Your employer failed to deal with the application in a reasonable manner;
  • Your employer rejected the application based on a reason other than the grounds for refusal (see above);
  • A decision to reject an application was based on incorrect facts; or
  • Your employer didn't follow the procedure properly, e.g. where it failed to provide a proper explanation to you of their decision to refuse the request or notify you of their decision within the relevant time period.
You are unlikely to succeed if you make a complaint because you disagree with the business grounds given.

The employment tribunal doesn't have the power to question your employer's business reasons, although it can examine the facts on which the business reason was based to see if they are factually correct. However, if you bring a case jointly with other legislation, e.g. discrimination legislation, an employment tribunal may try to look at how the request was considered. A tribunal will want to see evidence:

  • of any facts relied upon to reject the application; and
  • that your employer provided a sufficient explanation as to why the business ground applied.
Remedies and compensation

An employment tribunal can order your employer to:

  • pay an award to you; and/or
  • reconsider your application by following the procedure correctly
The maximum level of compensation is 8 weeks' pay - although there is a statutory cap on this of £464 per week.

For applications made in Northern Ireland there is a separate award of up to 2 weeks' pay where an employer fails to allow you to be accompanied at a meeting.

Protection from unfair treatment

Detriment or dismissal

You must not be treated detrimentally or be dismissed by your employer for any reason relating to your flexible working request.

You can make a complaint to an employment tribunal if you suffer a detriment or are dismissed because you:

  • make, or propose to make, an application to work flexibly;
  • exercise, or propose to exercise, a right under the flexible working request procedure;
  • make, or state your intention to make, a complaint to an employment tribunal about a flexible working application; or
  • in Northern Ireland only, exercise or seek to exercise your right to be accompanied at a meeting to discuss your request (this also applies if you accompany another employee to such a meeting).
A detriment is where an employer acts, or deliberately fails to act, in a way that results in you being unfairly treated, e.g. where you are not offered promotion, facilities or training opportunities that you would otherwise have been offered or had made available to you.

Dismissal means the termination of your employment, with or without notice, including redundancy selection and the non-renewal of a fixed-term contract. It could also include constructive dismissal, i.e. where you resign believing your employer has substantially breached your contract of employment.

Discrimination

In some circumstances, rejecting your flexible working request could cause you to claim for discrimination on grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation, or religion/belief (in England, Wales and Scotland) or religious belief/political opinion (in Northern Ireland).

For example, if you're a woman returning from maternity leave to work part-time and your application was rejected, this could be indirect sex discrimination as a greater proportion of women than men have the main parental caring responsibility. Requiring you to work full-time, therefore, puts you at a disadvantage compared to your male colleagues.

Other rights

Other rights that help you take time off work to care for others are:

  • Parental leave, where you can book blocks of unpaid time off to care for young children
  • Time off for dependants, which gives you unpaid time off to cope with family emergencies