Flexible Working Requests

Employees have a “day one” right to make a request for flexible working under the Employment Act 2006 and the Flexible Working Regulations 2020. The right does not, however, extend to self-employed contractors, consultants or agency workers.

The request can be made to change working hours, the days when an employee is required to work and/or the place of work (e.g. to permit home working versus office-based working or provide for a combination of both). Generally speaking, granting a flexible working request will lead to a permanent change in the employee’s terms and conditions. However, there is nothing to stop an employee requesting a temporary change. Where the change is only intended to be temporary, the duration should be stated in the request and reflected in any confirmation provided by the employer.

A flexible working request must be made in writing and state the following:

• that it is an application for a change in the terms and conditions of employment;
• the change requested and the date when it is proposed it should take effect;
• what effect the employee thinks the change will have on the employer and how, in the employee’s opinion, that effect might be dealt with;
• whether the employee has previously made such a request to the employer and, if so, when; plus
• the date of the application.

An employee can only make one request in any 12-month period.

There is nothing preventing an employee from making an “informal” request and, whilst the employer will not be obliged to follow the statutory procedure in response to an informal request, a refusal without appropriate consideration may give rise to claims for discrimination (see below).

Procedure for dealing with a request

An employer must deal with the application in a reasonable manner and notify the employee of the outcome of the request within 3 months (which can be extended by agreement). This includes any appeal that the employer allows.

Besides considering the statutory right to request flexible working from a purely practical/feasibility perspective, the employer should consider whether the flexible working request relates to one of the protected characteristics. For example, does the proposed “new” arrangement constitute a reasonable adjustment for disability (even if not “signposted” as such by the employee)?

An employer can only refuse a flexible working request 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 or to recruit additional staff;
• detrimental impact on quality or performance;
• insufficient work at the time the employee proposes to work; or
• planned structural changes.

An employer may treat a request as “withdrawn” if, without good reason, the employee misses two meetings to discuss an application or appeal (for example sickness). The employer must tell the employee they are treating the request as withdrawn.

There is no legal definition of what it means to deal with a request in a “reasonable manner”. Nevertheless, guidance suggests that the employer should carefully assess the effect of the requested change(s) for both the employer and employee, such as the potential benefits or other impacts of granting or refusing the request. Other recommendations which would demonstrate reasonableness on the employer’s part include:

• consulting with the employee where the employer cannot accept the employee’s request in full;
• where appropriate, allowing the employee to be accompanied to the consultation meeting(s);
• considering the use of trial periods;
• if a request is refused, clearly explaining the business reason(s) and providing any additional information which is reasonable to help explain the decision;
• allowing an appeal against the refusal of a request and permitting the employee to be accompanied at the appeal meeting(s).

Additionally, as a matter of good practice, any decisions should be confirmed to the employee in writing without unreasonable delay.

If the employer accepts the employee’s flexible working request, the new work pattern will be a contractual variation of the employee’s terms and conditions and will be assumed permanent, unless otherwise agreed. The variation must be confirmed in writing, either by re-issuing the employee’s contract of employment or setting out the amended terms in a side letter.

Where a request is refused, clear communication about the rationale, and being fair with respect to the handling of any appeal, can help to establish understanding and gain the employee’s trust that the request has been handled reasonably.

Complaint to tribunal

An employee can make a complaint to the tribunal about a flexible working request if the employer:

• fails to deal with the request in a reasonable manner;
• fails to notify them of the decision on their request within the prescribed decision period;
• fails to rely on one of the permissible grounds when refusing the request;
• bases their decision on incorrect facts; or
• wrongly treats the employee’s request as withdrawn.

A complaint to the tribunal must be made within 3 months of the relevant failure of the employer but the employment tribunal can allow a complaint which is “out of time” if there is a good reason for the delay.

Where the complaint is successful, the tribunal can make a declaration. It may also order the employer to reconsider the request and/or award compensation of up to 8 weeks’ pay (subject to the statutory cap on a week’s pay).

Detriment and dismissal for exercising the right

An employee has a right not to suffer detriment (for example, being refused a promotion or pay rise) for seeking flexible working, bringing tribunal proceedings, or alleging a ground for bringing proceedings.

If an employee is dismissed for seeking flexible working, this is dealt with under the unfair dismissal provisions of the Employment Act 2006. Dismissal for such a reason is automatically unfair (i.e. without the need for a qualifying service period).

Where a complaint for unfair dismissal is successful, the tribunal can make a declaration and may award compensation of an amount which the tribunal considers just and equitable, having regard to the employer’s infringement and the employee’s loss. The maximum amount of compensation that can be awarded to an employee who has suffered a detriment is the sum of the basic award and the compensatory award that could be awarded on a finding of unfair dismissal.