Everything you wanted to know about…Flexible Working Request…but were too afraid to ask!

Flexible working requests have been a useful tool for employees for many years, originally largely benefitting working mothers. More recently, however, with seismic changes to working practices during and following lockdown, a new approach to flexibility in working life is being embraced by both employers and employees, often through the mechanism of flexible working requests.

What is a Flexible Working Request?

In summary, an employee with at least 26 weeks’ continuous service has the statutory right under the Employment Rights Act 1996 to make an application or request to their employer for flexible working, i.e. to change their terms and conditions relating to:

• how many hours they are required to work;
• when they are required to work, and/or
• where, as between their home and their employer’s place of business, that work is done.

By way of illustration, ACAS have helpfully outlined the most popular requests which are made by employees under the flexible working request legislation, which are to:

• reduce hours to work part-time;
• change their start and finish times;
• have flexibility with start and finish times (sometimes known as ‘flexitime’);
• work hours over fewer days (‘compressed hours’);
• work from home or elsewhere (‘remote working’), or
• share the job with someone else.

Within the bounds of a flexible working request, employees might ask for the change to be for:

• all working days;
• specific days or shifts only;
• specific weeks only, e.g. during school term time (or during school holidays); or
• a limited time, e.g. for six months only.

Who is eligible to make a statutory request?

An individual may only request flexible working under the statutory mechanism if they:

• are an employee;
• have at least 26 weeks’ continuous service;
• are not an agency worker (unless they are returning to work from a period of parental leave); and/or
• have not made a statutory request for flexible working during the previous twelve months.

All eligible employees have the right to request flexible working, whatever their circumstances and whatever their purpose in making the request. The employee’s purpose in making the request is no longer relevant to the exercise of the statutory right, although it may be relevant when the employer exercises its discretion as to whether to agree to the request.

How does an employee make a statutory flexible working request?

An eligible employee must comply with the following, when making a flexible working request:

• say that it is a request for flexible working;
• specify the change the employee would like to make;
• give a date when the employee would like the change to happen;
• explain what effect, if any, the employee thinks that the change will make to their employer and how any such change could be dealt with;
• make the request in writing;
• state whether a previous request has been made by the employee to the employer and, if so, when, and
• make sure the request is dated.

Many employers provide a template form for employees to use when making such a request, to simplify the process for employees and also to ensure that they are provided with all the relevant information at the earliest opportunity. Certainly, it would not be advisable to reject a request due to a failure to meet any of these requirements and it is advisable to have a dialogue with the employee to elicit the further information required.

How should an employer respond to a statutory flexible working request

Once a valid request has been submitted, the employer:

• must deal with it in a ‘reasonable manner’;
• must notify the employee of its decision on the request within a period called the ‘decision period’; and
• may only refuse the request if it considers that one or more of certain defined grounds for refusal applies.

The employer should, of course, acknowledge a flexible working request in writing, once it has been received, and set in train arrangements for discussing it with the employee.

What is meant by dealing with statutory flexible working requests in a “reasonable manner”?

The requirement on an employer that receives a flexible working request to ‘deal with [it]… in a reasonable manner’ is clearly a broadly-worded one, with no specific detail included in the statutory wording.

Nonetheless, an alleged failure to deal with such a request in a reasonable manner can provide the foundation for a claim to the employment tribunal by the employee who made the request. How an employment tribunal would construe this requirement, and adjudicate on whether or not there has been compliance by the employer with it, is therefore of crucial importance.

What is the timetable for notifying employees of the employer’s decision (the ‘decision period’)?

The employer must notify the employee of its decision on the employee’s request for flexible working within the ‘decision period’.

The decision period for a given request:

1. begins on the date that the request is made, and
2.  ends at the end of:
   • the period of three months beginning with that day, or
   • such longer period as may be agreed by the employer and the employee.

Any extension of the decision period beyond the standard three months must be agreed between the parties.

Provided there is compliance with the above conditions as to timing, this means that the decision period may be extended repeatedly and/or indefinitely, provided the parties both agree.

What are the grounds for refusing a statutory flexible working request?

An employer may only refuse a request for flexible working if it considers that one or more of the following grounds for refusal applies:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; and/or
• planned structural changes, e.g. the employer intends to reorganise or change the business and thinks the request will not fit with these plans.

If the employer decides to reject the request, it would be well advised, in its notification of the decision to the employee, to:

• state which of the above grounds apply, and
• explain, in the case of each ground cited, why it considers it applies.

Given the breadth of legitimate grounds for refusal, it will often not be hard for the employer (if it so desires) to justify as legitimate any decision it takes to reject a request. However, the employer must also bear in mind the potential for discrimination and/or unfair dismissal claims, which will typically be of greater commercial significance.

Best practice and the spirit of dealing with flexible working requests in a reasonable manner suggests that employers should approach flexible working requests in good faith and with an open mind. Often, where a flexible working request cannot be accommodated, this will include proposing alternative flexible working arrangements which may still be supportive to the employee, even if they are not exactly what the employee has requested.

What are the cultural benefits of flexible working and in particular hybrid/home working?

Employers will often have little difficulty in finding a reason to refuse a flexible working request if it wishes to do so and although that may sometimes seem to be best for the business in the immediate to short term, there can be many benefits in having a more accommodating outlook to such requests.

The benefits of flexible working may include:

• increased productivity and effectiveness;
• less time (and money) spent commuting;
• reduced absenteeism and ‘presenteeism’;
• improved mental health and wellbeing, as well as physical fitness;
• an improved work/life balance, e.g. more time spent with family, or on other activities; and/or
• attracting and retaining key employees.

Please don’t hesitate to contact the team at MLP Law for detailed advice in connection with any of the issues raised above. You can reach us at employment@mlplaw.co.uk or @HRHeroUK or on 0161 926 9969.