Flexible working is a way of working that suits an employee’s needs, eg being able to work certain hours or work from home.
Anyone can ask their employer to work flexibly.
Employees who care for someone (eg a child or adult) have the legal right to ask for flexible working.
This is also known as ‘making a statutory application’. However, you have to qualify and your employer doesn’t have to agree to the request.
2. Types of flexible working
There are different ways of working flexibly.
2 people do 1 job and split the hours.
Working from home
It might be possible to do some or all of the work from home or anywhere else other than the normal place of work.
Working less than full-time hours (usually by working fewer days).
Working full-time hours but over fewer days.
The employee chooses when to start and end work (within agreed limits) but works certain ‘core hours’, eg 10am to 4pm every day.
The employee has to work a certain number of hours over the year but they have some flexibility about when they work. There are sometimes ‘core hours’ which the employee regularly works each week, and they work the rest of their hours flexibly or when there’s extra demand at work.
The employee has different start, finish and break times from other workers.
Default retirement age has been phased out and older workers can choose when they want to retire. This means they can reduce their hours and work part time.
3. Making a statutory application
The basic steps for making an application are:
The employee writes to the employer.
The employer should request a meeting within 28 days to discuss the application.
The employer must make a decision within 14 days of the meeting and tell the employee about it.
If the employer agrees to flexible working they must give the employee a new contract. If they don’t agree the employee can appeal.
Employees can only make a statutory application if they have worked continuously for the same employer for the last 26 weeks.
The application must:
- be dated
- say that the employee either has responsibility as a parent or carer (or expects to have it)
- say that they’re making the application under the statutory right to request a flexible working pattern
- give details about how they want to work flexibly and when they want to start
- explain how they think flexible working might affect the business and how this could be dealt with (eg if they’re not at work on certain days)
- say if and when they’ve made a previous application
The employee doesn’t have to include proof that:
- they’re a parent or carer
- no-one else can care for the child or adult they’re responsible for
Meeting to discuss the application
The meeting must happen within 28 days of the employer receiving the application.
If the responsible manager isn’t at work, the 28 days start when they get back.
The employee must give a reasonable explanation if they can’t attend the meeting. Otherwise the employer can treat the application as withdrawn.
Bringing someone to the meeting
Employees can bring a work colleague or trade union representative (‘rep’) to the meeting. The rep can discuss things with the employer but they can’t answer questions on behalf of the employee.
If the colleague or representative can’t make the meeting, it should be rearranged to take place within 7 days. The employer must allow the work colleague paid time off to attend.
Withdrawing an application
Employees should tell the employer in writing as soon as possible. The application will be treated as withdrawn if the employee misses 2 meetings (without good reason) with the employer.
If the employee doesn’t provide the extra information that the employer needs to make a decision, the application might be treated as withdrawn.
If the application is withdrawn, the employee can’t make another one for 12 months.
4. After the application
The employer must write to the employee within 14 days of the meeting to let them know what the decision is. This time limit can be longer if they both agree.
Agreeing the application
If the employer agrees, they should give the employee a new contract. The employer should write to the employee within 28 days about this and the date the flexible working will start.
Rejecting an application
The employer’s letter must include:
- the business reasons for rejecting the application
- an explanation about how flexible working affects their business
- how the employee can appeal
Employers can only reject an application for one of the following reasons:
- extra costs which will damage the business
- the business won’t be able to meet customer demand
- the work can’t be reorganised among other staff
- people can’t be recruited to do the work
- flexible working will have an effect on quality and performance
- there’s a lack of work to do during the proposed working times
- the business is planning changes to the workforce
If the employer doesn’t agree to the request, they must have a meeting with the employee to discuss the reasons.
Employees can appeal against the decision if:
- the employer didn’t know something important related to the application when they made their decision
- the employee wants to challenge information used by the employer
Employees can’t appeal if they only disagree with the business reasons for the rejection.
If the rejected application causes any problems between the employee and the employer, they should be resolved with the employer.
Holding an appeal meeting
The employer must hold a meeting with the employee within 14 days after the employee has told them they want to appeal. Both sides must agree on the date.
Employees can bring a work colleague or union rep with them to the meeting. The employer must write to the employee saying what the decision is within 14 days of the meeting.
If the employee misses 2 appeal meetings without a good reason, the employer can treat the appeal as withdrawn. The employee won’t be able to make another application for 12 months.
Going to the employment tribunal
As a last resort, employees may be able to make a complaint to an employment tribunal if:
- the employer didn’t follow the correct process when handling the application
- the appeal is refused but the employee still thinks they have grounds for an appeal
- they’re dismissed or are treated unfairly (for example refused a promotion or pay rise) because of the application