Originally the right to request flexible working applied only to employees with specific caring responsibilities (employees with a child under 17, or 18 if disabled, or with caring responsibilities for adults) but from 2014 it applies to all employees with enough continuous service. The new legislation also requires employers to deal with requests in a “reasonable manner” and within a three-month decision period (replacing the previous very rigid process.)
Flexible working requests are not for short-term amendments but for permanent amendments to the contract of employment e.g. hours of work, days of work or place of work.
Whilst employers are not obliged to accept a request to work flexibly, they are required to give it serious consideration. Rejecting a flexible working request must be for one of 8 permissible business reasons as set out in the legislation.
To be eligible to make a flexible working request employees;
- Must have 26 weeks continuous service at the date of the request; and who
- Not have made another application in the last 12 months.
Employers are required to consider requests properly following the process set down in the legislation. See the Flexible Working policy within the Family Friendly policies and procedures for further information.
Typical employment law pitfalls
Refusing a request without good reason, not following a proper procedure, not allowing a companion to be present, refusing a request for a reason that is not one of the 8 permissible reasons, not giving enough information for the reason for refusal, not confirming the changes in writing as a contractual change.
Conversely some employers wrongly believe they have to comply with a request and acquiesce in circumstances which result in difficulty for the business.
From the employee’s point of view it is often commonly wrongly thought that after a certain period of time, they can simply revert to the old terms. A change agreed under these regulations is permanent, and so if an employee wishes to change back to their previous terms they would have to make a new flexible working request and again and the same process would apply.
Following its consultation in 2021, the government announced it will reform the right to request flexible working. The reforms include:
- Making it a day 1 right to make a request;
- Making it a requirement for employers to consult with employees when they intend to reject a request;
- Allowing two statutory requests a year;
- Providing a decision period of two months;
- Removing the existing requirement for an employee to explain what effect, if any, the change applied would have on the employer and how that effect might be dealt with.
The timing of the reforms is not yet clear and is subject to ‘when parliamentary time allows’. Watch this space!
Help and support
We are here should you wish to discuss requests and there possible impact. Where a request is agreed we can draft a contractual amendment or a new contract of employment. If you become aware of a complaint relating to flexible working, please contact us immediately for guidance.
If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at email@example.com to discuss your requirements, or contact us via our website and we’ll call you back.