I Wonder How to Navigate the Complexities of Flexible Working Requests?

As flexible working gradually becomes the norm, employers and HR professionals often find managing flexible working requests to be a complex and uncertain practical challenge.

In this article, we’ll explore how to navigate the complexities of flexible working requests.

Statutory Flexible Working Requests

Only employees can make a statutory flexible working request, and they can do so from the first day of their employment. Up to two requests can be made within any 12-month period. Requests cannot be made by agency workers.

A flexible working request may relate to any of the following:

• A change to their hours of work;
• A change to the times they are required to work; or
• A change to their place of work.

To initiate the process, the employee must submit a written request.

With the Employment Rights Bill (“the Bill”) on the horizon, much of the current framework around flexible working will remain unchanged. However, the Bill will amend existing legislation so that:

• Employers can only reject a flexible working request where it is reasonable to do so on the grounds of one or more of the eight business reasons already set out in primary legislation.
   
• If an employer intends to reject a request, they must consult with the employee, as is currently required, but will also need to follow a specified process, which will be set out in secondary legislation.
   
• Should a request be rejected, the employer must explain to the employee why the decision is considered reasonable.

The aim of these changes is to increase the likelihood of flexible working requests being accepted, except where it is not reasonably feasible to do so.

Common Procedural Pitfalls

An employee may bring a claim if the employer:

• Fails to handle the request reasonably.
• Fails to notify the employee of the decision within the statutory timeframe.
• Rejects the request for an invalid statutory reason.
• Bases the rejection on incorrect facts.
• Wrongly treats the request as withdrawn.

How Should Employers Respond to Requests?

An employer who receives a flexible working request under the statutory scheme must:

• Handle the request reasonably – This would include following guidance in the ACAS Code of Practice on Requests for Flexible Working.
   
• Provide a decision within the statutory timeframe – The employer must notify the employee of the outcome (including any appeal decision) within two months of receiving the request, unless a longer period is agreed. The date of the request is when it is received. While there is no legal requirement to record agreed extensions in writing, doing so is considered good practice.
   
• Only refuse a request for one or more of the following statutory reasons:
  • The burden of additional costs.
  • Detrimental effect on the 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.
  • Insufficient work during the periods the employee proposes to work.
  • Planned structural changes.

Having a flexible working policy in place that clearly sets out the procedure will help ensure employees are aware of the process. Similarly, it provides employers with a clear understanding of what is expected of them.

If a request is accepted or a variation is agreed, this results in a permanent contractual change, unless otherwise agreed. The employer must issue a statement confirming the change within one month of the change taking effect.

If a request is refused, the employer must inform the employee and confirm the reason. A request may only be rejected if the employee is ineligible, if there are technical issues with the request, or for one or more of the eight statutory grounds listed above. Having a trial period can help an employer decide if the request can be accommodated. Employers should keep records of any issues that arise during a trial period and the results of any attempts to address them.

Before refusing a flexible working request, employers should ensure they have given it genuine and thorough consideration. This includes carefully assessing whether the role in question truly cannot be carried out flexibly, and whether that view can be objectively justified. Exploring alternative working arrangements is often a helpful exercise and may reveal workable compromises. If a request is declined, the employer should provide a clear and comprehensive explanation outlining the decision and the reasons behind it. Consistency in approach and decision-making is also essential to avoid perceptions of unfair treatment and to ensure compliance.

While not a legal requirement, the ACAS Code recommends allowing an employee to appeal. A right of appeal may help demonstrate the request was handled reasonably. If you do offer a right to appeal, make sure that a final decision is given to the employee within the 2-month period, or an extension is agreed. There are no prescribed grounds for appeal, and employees may challenge the decision itself or how the reason was applied.

An employee may withdraw their flexible working request at any time after it has been made but should do so in writing. An employer may also treat a request as withdrawn if the employee, without good reason, fails to attend both the initial meeting to discuss the request (or appeal) and a subsequent rearranged meeting.

Employees are also permitted to request temporary changes, provided they specify the intended duration of the change.

Conclusion

In conclusion, while navigating flexible working requests can be challenging, a clear understanding of the legal framework and the correct process allows employers to manage requests with confidence and reduce potential risks. With the forthcoming changes under the Employment Rights Bill, the importance of clear communication and providing a reasonable justification for any refusal will be greater than ever.

Further Advice

If you have any queries on flexible working requests or any other employment-related matters, our Peace of Mind Team is here to provide expert guidance. Our Document Audit Team can also assist in drafting relevant workplace policies.

Contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 02380 717 717.

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