Flexible working is now commonplace in many businesses, to allow their staff more freedom when it comes to their working hours. A study conducted by the CIPD has found that offering flexible working to staff members has boosted both productivity and profits.
When most people think about flexible working they often assume that it will only involve different start and finish times. However, flexible working includes a wide range of possibilities:
- Flexitime - this will include having certain core hours but the start and finish times can vary
- Annualised hours - this involves agreeing a specified number of hours to be worked within a year, which can be worked at a time that suits the employee
- Compressed hours - when an employee works full time hours but over a shorter number of days
- Staggered hours - when an individual requests to have different start, finish and break times to all other employees
- Part time - any hours that are below full-time hours
- Job sharing - where two people share the working hours allocated to one position
- Working from home - includes any work that has taken place outside of the workplace, including the home or a library or a café, for example
Every employee that has 26 weeks of continuous service has a statutory right to request a change of working hours/pattern for any reason. Only one request can be made in any 12 month period. The application must:
- Be in writing
- Be dated
- State that it is an application made under the statutory procedure
- Specify the change that the employee is seeking and when they wish the change to take effect
- Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with
- State whether the employee has previously made an application to the employer and, if so, when this was.
Upon receipt of the application, the employer must then:
- Deal with it in a reasonable manner
- Notify the employee of its decision within three months
- Only refuse a request on one or more of the following grounds:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise 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; or planned structural changes.
All requests must be dealt with in a reasonable manner by the employer. This can be done by having regular meetings and assessing the pros and cons of the request. Another way that the employer will be seen as being reasonable is offering trial periods and an appeals process. However, neither process is a legal requirement imposed on an employer nor a statutory right for an employee.
When can a request be withdrawn or rejected?
An employee can withdraw an application at any time after it has been made. The withdrawal should be confirmed in writing. An employer can consider an application as withdrawn in either of the following situations:
- The employee, without good reason, has failed to attend both the first meeting arranged by the employer to discuss the employee's request and the next meeting arranged for that purpose.
- The employer has allowed the employee to appeal against the rejection of their request, or to make a further appeal, and the employee, without good reason, fails to attend both the first meeting arranged by the employer to discuss the employee's appeal and the next meeting arranged for that purpose.
If an application is agreed, a section 4 statement must be issued stating the changes along with the date that the changes will come in to affect. It is also best practice to provide an amended contract.
Making a complaint
If for any reason the employee feels that their request was not dealt with correctly or fairly, then the employee can make a claim to an employment tribunal or use the business’ appeals process. The complaint must be submitted up to a maximum of three months less 1 day after the decision.
An employee can only take the case to an employment tribunal in certain circumstances:
- The employer failed to deal with their application in a reasonable manner
- The employer failed to notify them of the decision on their application within the decision period.
- The employer rejected the application for a reason other than one of the statutory grounds
- The employer's decision to reject the application was based on incorrect facts.
- The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.
An employee cannot submit a case to an employment tribunal just because the request was rejected. When considering a claim the employment tribunal will only be able to look at the following:
- Reviewing the procedure followed by the employer
- Considering whether the request was taken seriously
- Considering whether the decision was based on correct facts
- Considering whether the reason given falls within the permitted grounds stated in section 80G of ERA 1996
If the employment tribunal believes the claim is well founded it must make a declaration to that effect and may make either or both of:
- An order for reconsideration of the request. If it does this the date of the tribunal's order will be treated as the date of the request.
- An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to the maximum of 8 weeks’ pay
The Employment Team at Wildings Solicitors have built a solid reputation acting for both businesses and individuals in Employment matters. If you are an Employer and need advice about flexible working, our Employment Solicitors in Birmingham and Manchester would be happy to help.