Responding to applications for flexible working

Who can ask for flexible working arrangements?

Anyone can ask their employer for flexible working arrangements, but the law provides some employees with the statutory right to request a flexible working pattern.

Applications can be made by:

• an employee, but not an agency worker
• employees who have worked for their employer for 26 weeks’ continuously before applying
• An employee who has not made another application for flexible working under the right during the previous 12 months

And:

• have or expect to have parental responsibility of a child aged under 17
• have or expect to have parental responsibility of a disabled child under 18 who receives Disability Living Allowance (DLA)
• are the parent/guardian/special guardian/foster parent/private foster carer or as the holder of a residence order or the spouse, partner or civil partner of one of these and are applying to care for the child
• are a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or who although not related to the employee, lives at the same address as the employee

The law requires the employer to seriously consider an application, and only reject it if there are good business reasons for doing so. The law only provides the right to ask for flexible working – not the right to have it. Employers can reasonably decline an application where there is a legitimate business reason.

Employees who do not have the legal right to request flexible working are, of course, free to ask their employer if they can work flexibly.

Examples of flexible working are:

• flexi time: choosing when to work (there’s usually a core period during which employees have to work)
• annualised hours: employees hours are worked out over a year (often set shifts with flexibility on deciding when to work the other hours)
• compressed hours: working the agreed hours over fewer days
• staggered hours: different starting, break and finishing times for employees in the same workplace
• job sharing: sharing a job designed for one person with someone else
• homeworking: working from home
• part time: working less than the normal hours, perhaps by working fewer days per week

How must the application be made?

The employee must comply with the following requirements:

• the application must be made in writing, stating that it is being made under the statutory right to apply for flexible working
• the application must confirm the employee’s relationship to the child or adult
• the application must set out the employee’s proposal and explain what effect the employee thinks this will have on the employer’s business and how this may be dealt with
• the application must specify a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it. This may take 12 – 14 weeks.
• the application must state whether a previous application has been made and if so the date on which it was made
• the application must be dated

If the application is approved the variation in the contractual terms becomes permanent and the employee has no automatic right to change back to their previous pattern of working unless the application included a specified time period. (Employers may approve an application on a trial basis only).

Responding to applications for flexible working.

On receipt of a written application for flexible working the employer must:

• Arrange and hold a meeting with the employee within 28 days to discuss the request. (A meeting is not required if the employer agrees to the terms of the application and notifies the employee accordingly.)
• If requested the employer must allow the employee to be accompanied at the meeting by a work colleague.

Following the meeting the employer must:

• Notify the employee of their decision in writing within 14 days of the date of the meeting. The notification will either:

• Accept the request and establish a start date and any other action
• Confirm a compromise agreed at the meeting
• Reject the request and set out clear business reasons for the rejection together with a notification of the procedure the employee should follow if they wished to make an appeal against the decision.

If an appeal is made. The employer must:

• Arrange to hear the employees appeal within 14 days of it being made
• Notify the employee of the decision on the appeal within 14 days of the meeting which either:

• Upholds the appeal and details the agreed flexible working arrangements
• Dismisses the appeal and states the grounds on which the decision was made.

On what grounds can applicants be refused flexible working arrangements?

Providing the employer has given serious consideration to the application for flexible working it can be refused for one or more of the following reasons:

• 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
• Planned structural changes

How can employers demonstrate that they have given serious consideration to an application for flexible working?

The most effective way is to carefully review the role the flexible working applicant undertakes and consider how the changes would affect the ability of the employee to fulfil the role if the proposed changes were made. Would the company need to make other adjustments, would those adjustments be feasible, realistically affordable  or would it not be practical to make those adjustments due to the detrimental effect on the business.  HR Management Support Ltd has developed  a questionnaire that can be used by the employer to help identify and measure the effect flexible working arrangements might have on the role and the business as a whole.

Obtain your own free copy of this flexible working questionnaire by completing the form below and a copy will be emailed to you.