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Flexible working- the basics

Flexible working opportunities can benefit everyone: employers, employees, and their families. During the pandemic, employers started to recognize it makes good business sense to provide flexible working opportunities for their staff.

What is 'flexible working?'

'Flexible working is a phrase that describes any working pattern adapted to suit your needs. Common types of flexible working are:

· Part-time work, meaning fewer hours and fewer work days per week

· Flexi-time which means choosing when to work

· Annualized hours which means your hours are worked out over a year often in set shifts with you deciding when to work the other hours

· Compressed hours which means working your agreed hours over fewer days

· Staggered hours which means different starting and finishing times for employees in the same workplace

Remember, this list is not exhaustive and there may be other forms of flexible working that are better suited to you and your employer.

Asking for flexible working

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.

You must:

  • be an employee but not an agency worker other than those returning from a period of parental leave or in the armed forces

  • have worked for your employer for 26 weeks continuously before applying

  • have not made another application to work flexibly under the right during the past 12 months

Under the law, your employer must seriously consider any application you make, and only reject it if there are good business reasons for doing so. You have the right to ask for flexible working - not the right to have it. Employers can reasonably decline your application where there is a legitimate business ground.

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, many employers are willing to consider such requests.

Applying for flexible working

If you have the statutory right to apply, then there is a process you must follow.

You should bear in mind that under the statutory procedure the process of making a request and your employer considering it can take up to 14 weeks. So if you are thinking about changing your work pattern, you should speak to your employer as early as possible.

You should also be aware that if your employer agrees to your request, then it may result in a permanent change to your contract of employment. If you request a flexible working pattern that will result in you working fewer hours, your pay will reduce too.

If you do not have the right to request flexible working then the statutory process might still be helpful to you as a guide to how to best raise this matter with your employer and you should consider speaking to your employer as early as possible.

Making your application

When making an application it must:

  • be made well in advance of when you want it to take effect

  • be in writing as a letter or email

  • be dated

  • state that the application is made under the statutory right to request a flexible working pattern

  • give details of the flexible working pattern you are applying for including the date from which you want it to start

  • explain what effect you believe the new working pattern would have on your employer and how any such effect might be dealt with

  • state whether you have made a previous application and when you made it

You can apply by either:

  • filling in a form given to you by your employer

  • filling in a standard form

  • sending the required information in a letter or email

What to include in your application

If you fail to provide all the required information as set out above your employer should let you know what you have omitted and you will need to re-submit a completed application. Your employer is not obliged to consider the application until it is complete and resubmitted by you.

If you unreasonably refuse to provide your employer with the information needed to assess whether the change should be agreed to, your employer will be entitled to treat the application as withdrawn and you will not be able to make another application under the statutory procedure for another 12 months.

It is always helpful to provide your employer with as much information as possible, including what the benefits to the business might be for you to work flexibly.

Think about what effect any changes will have on your job as you should aim to show that your plans would not harm the business and may enhance it. It may mean, for example, that you are available to provide extra cover at peak hours which would improve customer service.

Your employer should decide whether or not your request can be granted on business grounds rather than your circumstances. Remember, you're only allowed one application a year regardless of whether a previous application was made for separate caring responsibilities.

Any changes agreed upon will normally be permanent, unless you agree otherwise. Making a permanent change to your contract of employment is a big step and should not be entered into lightly. If you have concerns about this you might suggest to your employer that a trial period of working flexibly might be appropriate.

Withdrawing an application

You can withdraw your application for flexible working and if you decide to withdraw it, you should tell your employer as soon as possible. This should be done in writing to avoid any misunderstandings. Your application will be treated as withdrawn if you miss two meetings your employer arranges with you about your request.

The outcome of your application

Your employer must consider your request on business grounds. They can only reject your application for one of the following business reasons:

  • burden of additional costs

  • detrimental effect on the ability to meet customer demand

  • inability to reorganize 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

Agreeing your application

Your employer might simply agree to your request to work flexibly. If your employer does, then they should write to you within 28 days setting out:

  • the agreed changes to your employment contract

  • the date you will start your new working pattern

Discussing your application

If your employer does not agree to your request, they should have a meeting with you to discuss their reasons. The meeting must happen within 28 days of your employer receiving your application. You should both agree to the date.

If the person who would usually consider your request is away from work, the 28-day time limit will start when they return.

You are allowed to bring a colleague (which may include an employee who is a workplace union representative) to the meeting. They can talk with you and address the meeting, but they cannot answer questions on your behalf. If they are unable to attend the meeting, you should re-arrange it with your employer to take place within seven days of the canceled meeting.

Your employer must allow your colleague paid time off during work hours to go to the meeting with you.

If you can’t attend the meeting, you should contact your employer as soon as possible to rearrange it. If you fail to attend the rearranged meeting, you must provide a reasonable explanation. If you do not, your employer can treat your application as withdrawn. You will not be entitled to make another application for one year.

  • Introduction to trade unions

At the meeting, your employer might make some suggestions about your request. For example, they might suggest an alternative working pattern or a trial period. It is up to you whether you agree to this. Remember, your employer might be unable to agree to your application but may be able to agree on a compromise.

Your employer should consider your request properly, making sure they do not discriminate against you (for example, sex discrimination)

  • Sex discrimination and equal pay

The outcome of your application

Your employer must let you know, in writing, their decision within 14 days of the meeting. This time limit can be extended if you and your employer agree.

If your request is accepted, your employer should write to you and include:

  • the date they are writing to you

  • a description of your new working pattern

  • the date will start

If your application is rejected, then the written notification should include:

  • the business ground(s) for refusing

  • an explanation of why the business ground(s) apply to your application

  • details of your right to appeal

  • the date your employer is writing to you

Appealing your employer's decision

You have the right to appeal your employer's decision. You can do this on several grounds, including:

  • to bring something to your employer's attention that they may not have been aware of when they rejected your application

  • to challenge a fact your employer used in applying their business grounds for refusing your request

You cannot appeal if you simply disagree with the business grounds for refusing your request.

If you want to appeal, you must appeal in writing within 14 days of the date of notification of the employer's decision.

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