Understanding Flexible Working – A Step-by-Step Guide

Written by Andrew Johnson, Founder and CEO HRGuide - Wed 23rd Oct 2024

Introduction

Flexible working involves making a change to when, where or how an employee works. Some form of flexibility can be built into almost all jobs, regardless of the organisation's size or sector. You cannot automatically dismiss a request for flexible working by an employee and it's best to start by thinking about what might be possible when considering such a request.

Benefits of flexible working

Flexible working can benefit both employees and employers.

For employers, it can help:

  • attract and keep staff
  • their employees be more productive
  • keep employees happy and motivated
  • recruit for jobs that are hard to fill
  • improve diversity and inclusivity

For employees, it can help:

  • balance work with other parts of their life
  • improve health and wellbeing
  • open up more jobs to them

As an employer, it's good practice to have a policy on flexible working. A policy can help managers and employees discuss and agree flexible working in a consistent way. Download our Template Flexible Working Policy by subscribing to www.hrguide.co.uk

The statutory right to request flexible working

Employees have a statutory (legal) right to request a change to when, where or how they work. If they make a statutory flexible working request, their employer must follow the statutory procedure. Employees and employers can also discuss and agree changes without using the statutory procedure. Sometimes a quick chat might be all that's needed to agree a change.

Employees have a statutory right to request flexible working. This applies from the first day of the job. Employers can accept, partially accept or reject a request. The employer can only reject the request if there's a genuine business reason.

If an employee makes a statutory flexible working request, the employer must:

  • handle it in a reasonable way, in line with the Acas Code of Practice on requests for flexible working
  • accept the request unless there's a genuine business reason not to
  • consult the employee and discuss any alternative options – unless they've agreed to the request in full
  • make a decision within a maximum of 2 months
  • not dismiss or cause the employee detriment because of their request

Agreeing a change without using the statutory procedure

Employees and employers can agree flexible working arrangements informally without using the statutory procedure.

For example, if someone:

  • prefers to informally ask for a change
  • does not have a statutory right to request flexible working – this could be because they're legally classed as a worker or have not started their job yet
  • has already made 2 statutory requests that year
  • needs to ask for a short-term or urgent change

If an employee informally asks for flexible working, as an employer you do not need to follow the statutory procedure. While there's no legal obligation to follow the Acas Code for informal requests, following a similar procedure can help:

  • deal with requests fairly and reasonably
  • avoid delays
  • handle requests consistently
  • keep good working relationships

If a change is agreed - If an employer and employee agree a flexible working change, this usually changes the terms of the employment contract.

For example, if the change relates to the employee's:

  • working hours
  • job location
  • job description
  • pay

If any contract terms change, the employer must put them in writing within one month of agreeing them.

When an Employee makes a request for Flexible Working

When an employee wants to make a flexible working request, they must:

  • put the request in writing to you the employer – either in a letter or email
  • say it's a 'statutory request' for flexible working

The request must also include:

  • the date of their request
  • the change they are requesting – for example the change in their hours or place of work
  • when they’d like the change to start
  • if they have made any previous statutory flexible working requests to you, their employer, the date of any previous requests

Limits for making a request

An employee has limits on the number of statutory requests they can make.  They can:

  • make a maximum of 2 requests during any 12-month period
  • only have one 'live' request with the same employer at a time

A request will stay live until any of the following happen:

  • you, the employer makes a decision
  • the employee withdraws the request
  • you and your employee agree an outcome
  • it's been 2 months since the date of the employee’s request

A request will stay live during:

  • any appeal
  • any extension to the 2-month decision period, if you and your employee agreed to extend it

Extending the time limit - You and your employee can extend the 2-month time limit if you both agree to it. If you agree to an extension, you should confirm the extension in writing. For example, in a letter or email.

When you receive a request

As an employer, if you receive a statutory flexible working request, you must:

  • accept the request unless there's a genuine business reason not to
  • consult the employee before making a decision – unless you accept it in full
  • make a final decision, including any appeal, within 2 months
  • handle the request fairly and reasonably, in line with the Acas Code of Practice on requests for flexible working

When considering a request, it can help to start by thinking about what might be possible. Some types of flexible working might not be practical for every job. But it's likely some types of flexible working will work.

Following the law when handling a request - As an employer, you must follow:

  • a statutory request procedure, in line with the Acas Code of Practice on requests for flexible working
  • discrimination law
  • the law on reasonable adjustments, if the request relates to someone's disability

You must handle every request in a 'reasonable manner'. What is reasonable depends on each situation, but you should:

  • handle all requests in line with your organisation's policies and the Acas Code of Practice
  • consider requests in order of the date you received them
  • base your decision on facts, without making assumptions
  • make sure managers understand the procedure for handling flexible working requests
  • make a decision in a reasonable timeframe
  • communicate your decision clearly, including the reasons behind it
  • offer the employee the opportunity to appeal the decision

Acknowledging the request - As an employer, it's a good idea to confirm you've received the request.

This can help make clear to the employee:

  • you've received their request and are considering it
  • what the next steps are
  • you'll be in touch

Considering the request

As an employer, you should consider each request carefully before making a decision.

You should consider:

  • how the change would affect the employee
  • how the change would affect the business
  • any potential benefits or challenges
  • how rejecting the request would affect both the business and the employee

By law, you must accept a request unless there's a genuine business reason not to.

Reasons for rejecting a request

By law, as an employer, you can only reject a request if it's for one or more of the following business reasons:

  • it will cost your business too much
  • you cannot reorganise the work among other staff
  • you cannot recruit more staff
  • there will be a negative effect on quality of work
  • there will be a negative effect on the business's ability to meet customer demand
  • there will be a negative effect on performance
  • there's not enough work for your employee to do when they've requested to work
  • there are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans

If you feel that one of these reasons apply, you must consult the employee before making a decision.

Talking and listening to the employee before making a decision can help:

  • check you understand the request
  • check if the request relates to a disability – if so, you must also follow the law on reasonable adjustments
  • discuss any potential issues with the change
  • listen to the employee's thoughts, concerns and ideas
  • discuss other options, if there's a genuine business reason to reject the original request

If there's no business reason to reject the request, you must agree to it.

If you agree to the request - If you agree to the employee's request in full, there's no legal requirement to consult. You can communicate your decision and discuss the next steps with the employee. In all other cases you must consult the employee before making a decision.

If you agree to a change - If you agree to the employee's request in full, or agree a different change with them, you should put in writing:

  • the details of the flexible working arrangement you've agreed
  • an invitation to discuss next steps

If you have not agreed to the request in full, you should let the employee know how they can appeal the decision. This should include any timeframe for appealing. You should put these things in a letter or email.

Managing an Appeal

If you reject a request by an employee for a flexible working request and you have communicated your decision in writing to the employee, then you should allow them the right to appeal the decision. Whilst there's no legal right to appeal a statutory flexible working request decision. However, employers should give employees the option to appeal as part of a reasonable procedure.

An appeal is an opportunity:

  • for an employee to raise any concerns or share any new information
  • for an employer to review and change their decision if necessary
  • to find an outcome that suits both the employee and employer

If an employee appeals, the employer must make their final decision within 2 months of the date of the original request. This time limit can be extended if the employee and employer agree to extend it. The employer should confirm any extension in writing, for example in a letter or email.

 

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