Legal Guides

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Flexible working – what is it and how do I apply?

What is flexible working?

It is a way of working that revolves around the employee to suit the individual’s needs – such as flexible start and finish times (“flexitime”) or work hours over a fewer days (“compressed hours”).

Who has the right to request this?

Any employee, regardless of whether they are a parent or a carer, after having worked for the same employer for at least 26 weeks, will be eligible as long as no other flexible working request has been made in the past 12 months.  

How to make the request

  • Must be in writing, whether it is in hard copy format or by email – the request must make it clear that it is a ‘Statutory flexible working request’
  • The letter/email must include the date of the letter/email, the change required, the date the change is required from, how the changes may impact on the workload and/or business and how this can be dealt with, date of any previous requests made and whether the request is covered by the Equality Act 2010, for example, a reasonable adjustment being made due to a disability.

What happens next

Some employers may wish to discuss the request further in a meeting before they make a decision. If a meeting is arranged, ensure you prepare notes for the meeting, such as the benefits to you and/or your colleagues (eg, job share).

You may wish to be accompanied in the meeting and it is possible to request this from your employer. However, as there is no legal right to be accompanied in the meeting, the employer may decline.

The employer must make a decision within three months, or longer but only if this has been agreed with the employee.

If the request is approved, then the employer must make a change to the employment contract. If the employer declines the request, a written decision must be given to the employee with a full explanation of the refusal.

What to do if the request is denied

If the request is denied, it is always best to talk to your employer informally at first to understand the reason. If you are still not happy with the decision, then you can appeal. This must be done as soon as possible – check whether there is a policy that sets a timeframe to appeal such decisions.

To appeal – both the employee and employer must follow the company’s appeal process.

What happens if the appeal is rejected

It is important to remember that an employee cannot raise a complaint with the employment tribunal just because the flexible working request was denied. An employee can, however, raise a complaint at an employment tribunal if the employer :

  • Did not analyse the application fully in relation to the advantages and disadvantages
  • Did not hold a meeting to discuss the request further
  • Did not offer an appeal process
  • Treated the application as withdrawn when this was not the case
  • Dismissed an employee because of the request
  • Treated the employee inadequately because of the request
  • Made a decision using incorrect facts that led to a rejection. 

When to complain to an employment tribunal

An employee has 3 months less 1 day to complain to an employment tribunal from:

  • When they received the decision,
  • From when they found out their request was treated as withdrawn which was incorrect or
  • From the date the employer should have responded to the request but failed to do so if more than 3 months have lapsed (or time frame agreed).

Changes to the Law

Whilst the law is as set out above, a consultation paper is due to be published on Thursday 23 September outlining a change and the rights of an employee. One of the more notable changes that may come into effect is that an employee will have the right to make a request for flexible working from the very first day of work. Do remember however, that an employer will still have to follow the rules outlined earlier.

Author: Zainab Zaeem-Sattar, Associate Solicitor, Summerfield Browne Solicitors

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. 

Published on 2nd November 2021
(Last updated 2nd November 2021)

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