Flexible working – the “right to request”, not the “right to have”

Flexible working – the “right to request”, not the “right to have”

What is “flexible working”?

Flexible working is something most of us have had at least a taste of over the past 18 months and in a basic sense is a change to an employee’s working pattern to make it more “flexible”. Examples of this could be a change to the number of hours an employee works, their place of work or the times they are required to work.

What is the current position on the right to request flexible working?

The statutory right to request flexible working arrangements is set out in law within the Employment Rights Act 1996 and is subject to a number of eligibility criteria. The first of these is that a request can only be made by an employee. For the purposes of the legislation, an employee is “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.” The right does not apply to self-employed contractors, consultants or agency workers.

Also, to be eligible to make a request for flexible working, employees must have at least 26 weeks’ continuous employment. An eligible employee can request a change to their employment terms if the change relates to:

• A change to the hours they work.
• A change to the times when they are required to work.
• A change to the place of work (such as their home or any of the employer's workplaces).

This is provided for under section 80F(1) of the Employment Rights Act 1996.

Another condition of making a flexible working request is that an employee can only make one request in any 12-month period. This is quite an important point and the time is usually counted from the date the employee makes their request. There is however nothing to prevent an employee from making additional informal requests.

How does an employee make a request?

An employee needs to make a request in a certain format for it to qualify as a request for flexible working under the statutory procedure. An employee's application must:

• Be in writing.
• Be dated.
• State that it is an application made under the statutory procedure.
• Specify the change that the employee is seeking and when they wish the change to take effect.
• Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
• State whether the employee has previously made an application to the employer and, if so, when.

The Acas Guide on flexible working (“ACAS Guide”) also suggests that an employee should ensure that their application is dated and, if they have made an application for flexible working previously, that the application should give the date of that previous application. It also suggests that where the employee is making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability, then they should state this. However it is very possible that employees may not understand when the Equality Act 2010 applies to the request they are making. Therefore in practice, it may be helpful for the employer to cross-refer to its equal opportunities policy or make specific reference to childcare, religious requirements or adjustments required for a disability, in its flexible working policy. If an employer knows the reason for the request it will assist in avoiding potential discrimination issues at an early stage.

How should an employer deal with a request?

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

1. Firstly, deal with the request in a reasonable manner. There is no statutory definition of how to deal with a request in a reasonable manner (that would be too helpful!), but both the Acas Code of Practice on Flexible Working Requests and the ACAS Guide make recommendations on how an employer should deal with an employee's request for flexible working. The Acas Code suggests discussing the request with the employee as this will enable the employer to get a better idea of the changes the employee is looking for and how those might benefit both the employee and the employer's business. By acting reasonably, the employer should allow the employee to be accompanied for the discussion. The Acas Guide suggests that the work colleague accompanying the employee can be their trade union representative or any other co-worker at the same workplace and that the employee should be told that they can be accompanied sufficiently in advance of a meeting to enable them to arrange the attendance of their companion. 

1. Secondly, the employer should notify the employee of its decision, including the decision on any appeal, within the decision period. The decision period is:
• Three months beginning with the date on which the employee's request is made; or
• Such longer period as the parties may agree.

This is provided for in Section 80G(1B) of the Employment Rights Act 1996.

If the employer accepts the employee's flexible working request, or the parties reach agreement on a variation of the request after discussion, the new work pattern will be a contractual variation to the employee's employment and will be permanent, unless otherwise agreed.  The employer is then required to issue a section 4 statement. A section 4 statement refers to section 4 of the ERA and is a written statement of changes to the employee's Ts and Cs, within one month of the changes taking effect.

Can an employer reject a request for flexible working?

Yes, flexible working doesn’t necessarily suit every organisation and in some circumstances, it may not be possible to agree to a flexible working request. However, employers can only refuse a flexible working request if there is good business reason for doing so. The legislation permits an employer to refuse a flexible working request on eight business grounds and these are:

1. The burden of additional cost
2. An inability to reorganise work amongst existing staff
3. An inability to recruit additional staff
4. A detrimental impact on quality
5. A detrimental impact on performance
6. Detrimental effect on ability to meet customer demand
7. Insufficient work for the periods the employee proposes to work
8. Planned structural change to the business

The reasons for refusal are quite wide.  The test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not on the face of it import any question of reasonableness and it would appear that, assuming one of the eight reasons is given, an employee could only challenge the employer's decision if the employer's view is based on incorrect facts. This is of course separate to any potential issues of discrimination.

What are the risks to an employer if they don’t handle the flexible working request in a reasonable manner?

An employee can make a complaint to an employment tribunal where:

• the employer fails to deal with the flexible working application "in a reasonable manner";
• the request is not resolved one way or the other within three months (including time for any appeal);
• the employer has refused the application for a reason other than the statutory grounds;
• the employer's decision to reject the application is based on incorrect facts; or
• the employer has wrongly treated the application as withdrawn.

If the ET considers the complaint well founded it can order the employer to reconsider the application and make an award of compensation of up to eight weeks' pay, subject to the upper limit on the amount of a week's pay, which is £544 from April 2021.

Are there any other considerations for employers when they are considering a flexible working request?

Refusing flexible working can result in a discrimination claim. Although flexible working is increasingly being sought by both women and men, the evidence from the pandemic showed that women experienced the additional burden of childcare. It is likely to remain the case for the foreseeable future that women will be able to show that they are particularly disadvantaged by a refusal to allow flexibility because of childcare, opening up the possibility of a discrimination claim. Another point to consider is that of disability discrimination, and the overlap with reasonable adjustments. Employers should always be careful and take advice if a request is made for health reasons, or to make someone’s job more accessible on the grounds of health.

Given the COVID-19 pandemic, are there any recent updates within the world of flexible working that employers should know about?

Yes, flexible working is a hot topic in employment law at the moment. The government has released its proposals for strengthening flexible working rights. In the new consultation, the government:

• proposes to make the right to request flexible working a day-one right;

• asks whether the eight business reasons for refusing a request all remain valid;

• seeks views on requiring employers to deal with alternative arrangements when rejecting any request (for example, employers might have to say if they could or could not accommodate a slightly different working pattern to the one requested);

• is exploring whether employees should be allowed to make flexible working requests more often than once every 12 months and whether employers should be required to respond more quickly than the current three-month response time;

• asks if employers and employees are aware of the option for requesting a temporary arrangement and asks what would encourage employees to make time limited requests; and

• confirms it will not take forward proposals to require employers of large organisations to publish their flexible working policies on their websites or specify in job adverts whether flexible working would be considered.

The government also says it will launch a call for evidence to consider the sorts of "extra" flexibility people may need to help them live their lives in the best way they can, exploring the need for "ad hoc" and informal flexibility. The consultation is silent about the remedies for non-compliance, so these do not look set to change. The government’s consultation for strengthening flexible working rights closes on 1 December 2021.

What impact will the potential reform have on employers?

Some employers will welcome the government's decision to keep a "right to request" flexible working model rather than introduce "a right to have". Some campaigners argue that employees should have the flexibility they wish, with little attention given to whether this can realistically be accommodated across the board. The government itself has recognised in the consultation that a one-size-fits-all approach would not be feasible, stating that the type of flexibility that might be available will depend on the nature of the role and the needs of the employer's business.

In respect of those employees starting new positions, as currently, there is no scope under the proposed framework for employees to apply for flexible working in advance of starting the job, unless employers allow this. Without a discussion about flexibility prior to an offer being made, there is scope for conflict at an early stage in the employment relationship.

The proposals set out in the consultation do not represent a huge leap forward. Even if it is implemented in full, the proposals do not make flexible working the default position, it will remain open to employers to reject any flexible working request on one of the wide statutory business reasons. The consultation does contain sensible proposals which will broaden the scope of the current right. The proposal which is likely to have the most impact is removing the eligibility requirement of 26 weeks' service, making it a universal right, at least for employees. Allowing employees to make more than one statutory request each year will be welcomed by some as the current rule does not always allow individuals to respond to changing personal circumstances.

It is clear that the government is hoping that lessons learned through the COVID-19 pandemic will have longer-term consequences for the way we work and allow employers to think more openly about flexible working in future.