There is a statutory right to request flexible working after 26 weeks of service, but flexible working is so much more than just part-time hours. Employers must recognise the value of flexible working, and understand the fact that imaginative solutions can be found to suit all parties.
Enabling flexible working has been shown to provide significant benefits to employers, reducing absenteeism and stress at work, and increasing job satisfaction and in turn staff retention. In fact, in March 2021 the Government’s Equalities Office found that job adverts which offer flexible working can increase applications by up to 30%. There is a good business case, as well a legal requirement, to properly consider flexible working.
Options around flexible working can include home working, part-time working, condensed hours – such as a full working week over a shorter number of days, annualised hours – where an employee will work a certain number of hours over a number of months, or potentially the whole year, as and when they wish to, flexi-time with core hours, and many other options in between.
It’s highly advisable to have a discussion with the employee asking for flexible working and consider both the request, and any alternative resolutions for it.
In order to manage the process properly, here are some tips for getting it right:
- Try to keep it informal, if possible.
We often encourage our clients to have informal flexible working meeting as a first step. The formal process can be cumbersome and time-consuming. Most employers have a flexible working policy, but most requests can be dealt with informally in the first instance.
You may just be able to agree, but if you need to meet, informal meetings often encourage employees and managers to think of alternative ways that they could deal with both the request and the workload.
- Always deal with requests promptly and in line with required time limits.
For formal flexible working requests, you must complete the process to consider the employee’s request and provide an outcome within three months of receiving it, unless the employee agrees to extend the time.
Whilst three months seems like a long period, this can quickly go by, particularly if the employee is absent from the workplace, for example on maternity leave, and it takes time to arrange a convenient time to meet.
- Carefully consider the grounds when refusing requests.
The right to request flexible working is not a right to have it granted. Requests can be refused on one of eight business grounds, including the burden of additional costs, or the inability to recruit additional staff or reorganise work.
It is not enough, however, to point to a ground without giving any further rationale. Please put your mind to any rejection, as you could be liable for discrimination. For example, a refusal to allow a request made by a woman due to childcare commitments may be indirectly discriminatory on the grounds of sex.
- Remember to document the changes
If you have agreed to a flexible request, whether formally or informally, remember to document it. Once a flexible working request is agreed, it is a permanent change to the employee’s contract. You will need to issue either a new contract of employment or a contract variation letter to the employee confirming the change agreed and any knock-on changes, such as a consequential reduction in holiday entitlement where hours are reduced.
Future of flexible working
The government had a consultation on flexible working which closed on 1 December 2021. It appears that some of the proposals are being taken forward this year, although they have not actually finished their journey through Parliament.
These look likely to include:
- The right to request flexible working from the first day of employment, removing the current 26 weeks’ service requirement.
- The right to make two requests in any 12 months, and a requirement to consult with the employee before rejecting a request.
- The time limit for an employer to make a decision on flexible working requests reduced to two months.
- An employer must consult with an employee and must consider alternatives.
We will have to wait to see if these proposals come into force and the changes to flexible working in the future.
Always remember that the best place to turn for straightforward guidance on a flexible working request is ACAS.
The ACAS Code of Practice on flexible working requests provides helpful guidance for employers on best practice.
Claire Merritt is a partner in the employment team at Paris Smith