Flexible Working And The Law

Essentially, flexible working means allowing your employees to vary the number of hours or times that they work, or to work from home for some or the whole of the week. Other potential options include job sharing, taking paid or unpaid leave at specific times of the year (for example, during school holidays), or compressing working hours - for example, working the same number of hours as a regular five day week, but over four days.

Who can apply for flexible working?
The right to request flexible working was introduced in 2003 for parents of young and disabled children, and the scope of the law was extended to carers of certain adults with effect from 6 April 2007. Although any employee can apply for flexible working arrangements from their employer, employees with young or disabled children (under six and 18 years old respectively) or carers for certain kinds of adults have a specific legal right to request flexible working, which must be taken seriously by their employer. The government has announced plans to extend this right to all employees with children under the age of 16.

Applicants much fulfil certain criteria. Specifically, they must be:

Employees with a contract of employment
Have been working for you for at least 26 weeks continuously at the time of the application
And have not made another application within the previous 12 months.
Full details of who can apply are on the Department for Business, Enterprise and Regulatory Reform web site.

Making an application
For flexible working applications, the onus is on the employee to propose a particular pattern of flexible working arrangements and show how it can be implemented without affecting the business. This means that the employee has to provide a written application well in advance of the proposed date that the arrangements would commence. An employee can't simply walk into your office one day and announce they will start flexible working the following week.

The BERR has created a sample request form which can be used by employees to make a request for flexible working arrangements.

How to respond
Employers have a legal responsibility to consider applications properly, within the set procedure - simply saying "no" to a formal application isn't allowed. You must also adhere to the time limits of the procedure, so you can't simply shelve an application and claim it's still being considered.

Applications for Flexible Working
The first step is to meet with the employee to discuss the application in detail. Once you have done this, you must respond to the request in writing within 14 days, although if you need more time to consider the application you can request an extension - something that the employee must consider seriously.

Next, you should either inform the employee of your acceptance or rejection in writing - the BERR web site has template acceptance and rejection forms which you can customise and use.

Grounds for refusal
It's worth noting that there is no legal right to flexible working, only to have a request considered. However, the grounds on which you can reject a flexible working request are limited - you can't simply decide that you have a blanket policy of not allowing flexible working, and reject everything that crosses your desk.

Benefits of Flexible Working
Flexible working is something that can benefit everyone. Employees can gain a better work/life balance, while employers ensure that they don't lose skilled employees due to home circumstances and maintain higher levels of staff morale.

Accomodating Requests
Instead, grounds for rejection have to be based on whether the business can accommodate the request. For example, if an employee comes to you with a request for flexible working which will have obvious and severe implications for their ability to do their job effectively, or which will cost the company significant amounts of money to accommodate, you may well be right to reject it.

The specific grounds which you can legally reject an application on are:
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.
Much will depend on the quality of the application - if an employee has developed a sound business case for their flexible working option, it will be difficult to reject it.

However, rather than reject an application outright, a better option may be negotiation - say by opting for a compressed working week rather than reduction in the number of hours. Working at home can be another option which may suit an employer more than moving someone from full- to part-time. Or, if nothing can be done at present, you could agree to look again at a flexible working request at a specified date in the future - for example when you company has better IT systems in place to support home working.

Trial periods
Another option is to commit to a trial period, to see if the suggested arrangements suit both employee and employer. This can take place either before a formal application, or after the application has been made - typically when an employer requires more time to make a decision. However, your trial period shouldn't go on for too long - two or three months would be a fair trial.

Rights of appeal
Negotiation and trial periods can help you avoid having to go through an appeals process. Employees have 14 days to appeal in writing after you have rejected their request, and if they do appeal you must arrange an appeals meeting within another 14 days. Appeals may challenge the decision either on grounds of fact, or by bringing any new factors which may effect the decision to light. Once the meeting has taken place, the employer then has 14 days to inform the employee of the outcome. Potentially, an employee can then take this decision to an outside body - either ACAS or an employment tribunal.

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