Flexible Working Requests

Your Guide To Employee Flexible Working Rights

If you have submitted a flexible working request to your employer, or wish to do so, you may want to learn more about your rights.

Below you can read our guide about flexible working rights.

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What Is Flexible Working?

Eligible employees have flexible working rights. “Flexible working” is a variation in the way an employee works – it covers a change to the:

  1. Hours worked
  2. Times when an employee is required to work
  3. Place of work

What Are Examples Of Flexible Working?

Flexible working can take many forms. Examples could include:

  • A reduction in your hours, moving you from a full-time to a part-time basis
  • Changes to when your working day starts and finishes, which could include some day-to-day flexibility (known as ‘flexitime’)
  • ‘Compressed hours’ where you work your contractual amount over fewer days
  • Working from a different location like your home, known as remote working and on either a full or part-time basis
  • Sharing your job with someone else

The flexible arrangements requested could vary between employees. For example, your changes could be for:

  • Every working day
  • Specific days, shifts or weeks, like during school term time
  • A limited time, like for six months

Who Can Request Flexible Working Rights?

Every employee is entitled to make such a request, providing they satisfy specific eligibility criteria. This is known as making a statutory application for flexible working, and for employees to do so, they must:

  • Have continuously worked for their employer for a minimum of 26 weeks
  • Be legally classed as an employee
  • Not have made another request within the previous 12 months

Additionally, there are exceptions where an employee with less than 26 weeks of service could be entitled to request to work flexibly. For example, a disabled employee who needs extended breaks at work may ask for such flexibility. This would constitute a request for a reasonable adjustment under disability legislation (pursuant to which an employee does not need 26 weeks of service).

  • The Employment Relations (Flexible Working) Act 2023 will soon bring changes to the eligibility criteria to request flexible working. The changes include being able to make a request on day one of employment rather than after 26 weeks. Also, employees will be able to make two requests per 12-month period.

How Often Can I Make A Request To Work Flexibly?

Employees mustn’t have made a separate request to work flexibly in the last 12 months to satisfy the eligibility criteria. Therefore, employees can only make one statutory flexible working request every 12 months. However, at their discretion, employers can allow more requests to be made if they wish.

  • Soon, the Employment Relations (Flexible Working) Act 2023 will allow employees to make two requests per 12-month period.

Speak To One Of Our Expert Employment Solicitors About Your Case

If you believe your flexible working request was unfairly treated or want to discuss your rights, get in touch now. One of our expert employment solicitors can provide a free consultation to discuss your case.

How Do I Make A Request For Flexible Working?

The statutory scheme sets out a procedure for making flexible working requests. This must be followed as your employer can reject a request if it is not made correctly. Your request must be made in writing and state:

  • That you’re making a ‘statutory working request’
  • The date of the application
  • The change you are seeking, including when you would like it to come into effect
  • What effect you think your request will have on your employer, and how this could be dealt with
  • Whether you have made a previous application, and if so, the date of that application

Although not compulsory, further information could be provided to potentially improve your request. You could highlight any benefits your proposed change may have on the business or your colleagues. 

  • The Employment Relations (Flexible Working) Act 2023 will soon make some changes to what employees must include in their requests. These changes will see employees no longer needing to determine how their requests’ effects could be dealt with.

What If My Request To Work Flexibly Does Not Comply With The Statutory Procedure?

Failure to comply with the statutory procedure is one of the grounds under which employers can reject flexible working requests. Although informing you of errors with your request is good practice, employers are not obligated to do so. Therefore, we recommend complying with the statutory scheme where possible.

How Will My Employer Deal With My Request To Work Flexibly?

Once an employer receives a request, they must deal with it in a ‘reasonable manner.’  Unfortunately, there is no statutory definition of a ‘reasonable manner’. However, Acas recommend how employers should deal with requests under the Acas Code of Practice on flexible working requests.

They explain that an employer should talk with their employee as soon as possible after receiving a request. When discussing the request, the employer should ensure the employee understands how the change will impact their terms of employment. This could include a reduction in salary and affect their bonus or pension entitlement.

Furthermore, Acas recommends employers allow employees to be accompanied by a work colleague or trade union representative at the meeting. They state that the employee should be informed of this before the meeting.

The employer must notify the employee of their decision within three months of the request being made unless the parties have agreed on an extension.

  • Changes caused by the Employment Relations (Flexible Working) Act 2023 will soon be implemented. This will mean employers must consult with their staff before rejecting a request. Furthermore, they would have to respond to a request within two months rather than three.

If A Request Is Accepted Will The Change Be A Permanent One?

Under the statutory scheme, any change agreed upon will be a permanent change to your terms and conditions of employment. However, it is open to the parties to agree otherwise.

Can I Request To Work Flexibly On A Temporary Basis?

If both parties agree, the change can be temporary and for a limited period only.  If you only want the change to be temporary, it makes sense to state that in the original request, with the duration of the desired change.

Case Study – Giles v Geach and Jones t/a Cornelia Care Homes (ET/3100720/05)

The Employment Tribunal held that requiring a payroll clerk to work above 16 hours per week in the office was indirect sex discrimination. As a result, the claimant was awarded almost £30,000 in compensation.

Read our analysis of the case here

If My Employer Agrees To My Request To Work Flexibly, Can I Have A Trial Period Before The Change Becomes Permanent?

The statutory scheme doesn’t include a trial period, although it might make sense for both parties to agree to one. If this is the case, a trial period can be agreed outside the statutory scheme. Also, an employee cannot insist on a trial under the statutory scheme. However, they could argue they should be offered one as part of dealing reasonably with their request.

On What Grounds Can An Employer Reject A Request To Work Flexibly?

The statutory scheme allows employers to reject a request to work flexibly on the following grounds:

  • the burden of additional costs
  • a detrimental effect on an ability to meet customer demand
  • an inability to re-organise work among existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • an insufficiency of work during those periods the employee proposes to work
  • planned structural changes (for example, where
    the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans)

Can I Withdraw A Request To Work Flexibly Once It’s Been Made?

It is possible to withdraw a statutory flexible working request once it has been made. You should do so in writing and be aware that you cannot make another request for the next twelve months. 

Additionally, an employer can treat a request as withdrawn if an employee (without good reason) fails to attend specific meetings. This applies when an employer arranges a meeting to discuss the request, including subsequent meetings for that purpose. The same applies to the first appeal meeting arranged on their behalf as well as the next one arranged for the same purpose.

Do I Have The Right To Appeal If My Employer Rejects My Request To Work Flexibly?

Under the statutory scheme, there is no right of appeal if your request is rejected.  However, an employer can agree separately to allow an appeal, and Acas advises that it’s good practice to do so. In fact, the right of appeal could be seen as intrinsic to dealing with a request in a ‘reasonable manner.’

Furthermore, the decision to refuse a request is subjective to the employer.  Despite this, an employee does have possible options on how to proceed if they disagree with the decision. An employee could raise a grievance or claim to an Employment Tribunal if the decision is based on incorrect facts.

Can I Make A Discrimination Claim If My Employer Rejects My Request To Work Flexibly?

Some employees who make a flexible working request may have further statutory protection.  This includes employees making a request because of:

If an employee considers their request to also be a reasonable adjustment request, they should state this from the start.

Can I Resign And Claim Constructive Unfair Dismissal If My Employer Refuses My Request To Work Flexibly?

In dealing with your flexible working request, your employer may conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. In such circumstances, you may be entitled to resign and claim constructive unfair dismissal.

Do I Have The Right To Work Flexibly Following My Return From Maternity Leave?

An employer does not have to allow an employee returning from maternity leave to work flexibly. However, an employee has the right to request it; if requested, an employer must deal with it correctly.

The Tactics Of Bringing A Claim Or Reaching A Negotiated Settlement

Your employer could deal with your flexible working request incorrectly or violate your flexible working rights in another way. Should this occur, you will want to consider how to proceed. You may consider dropping the matter for fear of ‘rocking the boat’, causing yourself additional stress or damaging your career.

However, It can be difficult to return to work if your employer has improperly dealt with your flexible working request or breached related rights. Furthermore, it’s not uncommon for you to want justice for unreasonable treatment. People want the person discriminating against them to account for what they have done and to prevent this from reoccurring.

Aside from dropping the matter, you generally have four options:

  1. Submitting a grievance to try and resolve the matter internally;
  2. Submit a formal grievance to your employer;
  3. Try to negotiate a settlement; or
  4. Bring a claim to the Employment Tribunal

Bringing An Employment Tribunal Claim

Bringing a claim to an Employment Tribunal is normally a ‘last resort’. This is due to the uncertainty of the claim’s success and the stress caused. Also, this results from the time that such a claim takes and the potential cost of instructing a solicitor. Equally, the Employment Tribunal is a public forum.

An Employment Tribunal is always an option and can be useful. However, it’s normally the best option if an internal resolution and/or a settlement with your employer cannot be made.

Negotiating A Settlement

We normally recommend trying to see if a negotiated settlement can be reached with your employer. Furthermore, we recommend trying this before resigning (if you feel you cannot continue working for your employer). This is because you are always going to be in a stronger negotiating position if you do so before resigning.

A settlement agreement would normally be agreed upon if your negotiations with your employer are successful. Under such an agreement, your employment will normally terminate (although this is not always the case). Additionally, you’d normally be provided financial and non-financial benefits in return for agreeing not to pursue claims against your employer. The benefits you receive could include:

  • Financial benefits such as payment of your notice pay, any outstanding salary and holiday. It could also include compensation for termination of employment and injury to feelings, which is up to £30,000.
  • Non-financial benefits like your employer providing you with an agreed reference and announcement. This may also include mutual confidentiality clauses and permission to retain company property like a company laptop.

It’s always a good idea to seek expert legal advice from a solicitor before proceeding. This is because missteps, such as resigning before negotiating, could damage your prospects of reaching a settlement that you are happy with.

Can I Bring A Claim In The Employment Tribunal If My Request Is Not Granted?

If your employer made their decision based on incorrect facts, it can be formally challenged in an Employment Tribunal. The tribunal can award up to 8 weeks’ pay (subject to the ‘week’s pay’ statutory cap) in successful claims. They can also order that your employer reconsider your request.

Examples Of Compensation Awarded In Cases Where Flexible Working Has Been Denied

(Last updated on 17 October 2023).