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What to expect in your redundancy package
Flexible working requests

Employees with at least 26 weeks' continuous employment have a statutory right to request to work flexibly. The Coronavirus pandemic has resulted in a lot more people needing to change their working pattern. Here we summarise the rights of employees, and responsibilities of employers, when dealing with statutory flexible working requests.

What kind of changes can I ask for?

Essentially, you can ask for any change to your working pattern as long as it relates to a change to the hours or the times you work, or a change to your place of work. 

It could include asking to work: part-time; compressed hours; annualised hours; term-time only; flexi-hours; from home; and hybrid working. Someone working part-time could even make a request to work full-time.

Whilst most requests will likely result in a permanent change to someone’s terms and conditions, there is nothing to stop you requesting a temporary change - in which case you should state how long you want the change to last in your request.

 

How do I make a request?

Your employer is only obliged to deal with one formal request from you within any 12-month period.  They can choose to permit you to submit more than one a year, but do not have to.  Many employers will permit employees to make informal requests so it may be worth speaking to your line manager or HR department before submitting a formal request.

Any formal application you submit must:

  • be in writing

  • be dated

  • say you are making the request under the statutory procedure

  • confirm the change(s) you are asking for, and when you want them to take effect

  • explain what effect, if any, you think the change(s) would have on your employer, and how you think such effect could be dealt with

  • confirm whether you have made a flexible working request before and, if so, when.

More often than not, it’s likely to help your application if you can provide as much information about the change(s) you want, the circumstances that have led to you making the request, and how you think your changes could be accommodated. 

 

What procedure must my employer follow? 

It’s worth noting that the right is to request to work flexibly, not a right to work flexibly.

Your employer has to deal with a flexible working request in a ‘reasonable manner’.  

There is no legal definition of what is meant by a ‘reasonable manner’, but both the Acas statutory Code on flexible working requests and its related guidance make recommendations which includes your employer:

  • discussing your request with you

  • considering your request carefully

  • allowing you to be accompanied to any meetings by a work colleague or trade union representative

  • explaining any implications on your terms and conditions if your request is granted

  • Confirming their decision in writing in soon as possible, i.e. within three months from the date you made your request (or if you have agreed to extend the period for them to make a decision, the end of the longer agreed period)

There is no automatic right to a trial period of the proposed new working pattern, but you can ask your employer for one.  

 

On what basis can my request be turned down?

There are eight permitted business reasons that your employer can rely on for turning down your request:

  • the burden of additional costs

  • an inability to reorganise work amongst existing staff

  • an inability to recruit additional staff

  • a detrimental impact on quality

  • a detrimental impact on performance

  • a detrimental effect on ability to meet customer demand

  • insufficient work for the periods you are proposing to work

  • a planned structural change to the business

As you can see, the reasons are very broad and give your employer a wide discretion to turn requests down.  They can also seek to rely on more than one reason.

There is no absolute right to appeal if your request is refused.  However, ACAS suggests it would be advisable for employers to offer a right of appeal. You could therefore potentially argue that not allowing you the right to appeal would be a failure by your employer to deal with your request in a ‘reasonable manner’.

 

What can I do if I don’t think my request has been handled properly?

You can bring a complaint in the Employment Tribunal if your employer:

  • fails to deal with your request in a reasonable manner

  • fails to notify you of their decision within the decision period

  • rejects your application for a reason other than one of the permitted grounds 

  • makes their decision on erroneous facts

  • treats your application as having been withdrawn when they shouldn’t have 

If your claim is successful, the Tribunal can order your employer to reconsider your request and/or award you compensation of up to eight weeks' pay.

Depending on the reason for making your request, e.g. because you are returning to work from maternity leave, or you have a disability, you may have additional claims against your employer. You also have the right not to be dismissed or to suffer any kind of detriment because you have either made or intend to make a flexible working request. 

You should therefore take advice from one of our specialist employment solicitors to explore your rights and potential claims.  They’ll also be able to tell you what steps you need to take to pursue a potential claim and the time period in which you would have to do so (generally speaking it is within 3 months less one day from the refusal, detriment or dismissal). 

 

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