Do I have to offer flexible working?

As we continue to progress towards an ever more modern working world, there is an increasing pressure on employers to consider requests for flexible working hours and with technology continually advancing, it is getting harder to justify the traditional 9am-5pm in the office arrangement. Nevertheless, employers do not have to grant a request for flexible working and only have to consider the request.

Who can apply for flexible working and what can they apply for?

Employees who have been employed for a period of at least 26 weeks have the legal right to request flexible working and can make a request once in every 12-month period (all employees can make a request earlier but they may not have a claim if you don’t consider it).  If a request is denied, an employee cannot make the request again until 12 months have passed, as it is likely that the reason for the refusal will still be relevant if another application is made directly after the initial request is denied. 

However, if the request is due to circumstances such as an employee’s disability, religious beliefs or childcare requirements, then you should reconsider the request, as there are greater risks to a business in these circumstances if it is refused.

In terms of what an employee can apply for, an employee can apply to: change the times they are required to work, change where they are required to work i.e. whether this be from home or the place of business and change the hours they are required to work. The request generally tends to be for a permanent change, although a temporary change can be requested.  

How can an employee apply for flexible working?

It is common for employees to follow a more informal process when requesting flexible working, particularly if they are working in quite an informal environment and employers may allow this.

However, in order for a request to be valid in law, an employee must ensure that the request complies with the following criteria: 

• The request must be in writing and explicitly state that it is an application for flexible working;
• The request must specify the change to the current contract that is being applied for and what date the employee proposes that this change comes into effect; and
•  The request must explain what effect, if any, the employee thinks making the change applied for could have on their employer and how this effect may be dealt with.

If the application meets the above criteria, then you are under a duty as an employer to consider the application and make a decision about whether or not it is approved.

Refusing the application

Although as an employer you can refuse an application for flexible working, this can only be refused on the following eight grounds:

1. The burden of additional costs,
2. Detrimental effect on ability to meet customer demand,
3. Inability to re-organise work among existing staff
4. Inability to recruit additional staff,
5. Detrimental impact on quality of work,
6. Detrimental impact on performance,
7. Insufficiency of work during the periods the employee proposes to work, and      
8. Planned structural changes.

Any other reason for rejecting the application will not be valid and is likely to result in the employee making an appeal.

Avoiding the risks

In order to avoid the risk of an employment claim, is important that as an employer you do properly consider any application for flexible working and ensure that any rejection is genuinely on the basis of one of the above eight grounds. It is also key that you ensure that your reason for the rejection does not target a specific group of people with a protected characteristic and that you are not putting yourself at risk of being accused of discrimination either directly or indirectly.

If the request is on the grounds of an employee’s disability, you also have to be mindful of the duty to make reasonable adjustments which could include a flexible working arrangement.

Each application should be considered on a case by case basis to avoid the risks of employment claims and it is important to remember that agreeing to what are seemingly small changes to a working pattern, can make a big difference to improving workforce morale.  

If you have any questions as an employer in relation to flexible working or if you are an employee considering making a flexible working request, then please contact our Employment Team on 0161 926 1508, employment@mlplaw.co.uk or follow our employment law-specific Twitter account @HRHeroUK.