Click on the bees below to find out about your right to request flexible working
Any employee (other than an employee shareholder, see below) with 26 weeks of service with the same employer has the right to make a request to work flexibly; you don’t have to be a parent or carer. By ‘Flexible Working’ the government means altering the way you work. This includes changing your hours, either compressing them or changing to part-time or term-time only, or working wholly or partly from home.
“Employee shareholder” is a specific employment status in which the employee agrees to give up certain rights – take further advice if you think you are an employee shareholder. Employee shareholders who have returned from parental leave in the last 14 days may still make a request.
The rules on how applications are dealt with are different in Northern Ireland. Click the link or see below for a brief summary of the main differences.
Before you make the request, have a look at our advice on how to negotiate your request.
Making the request
Any employee with 26 weeks service can make a request. This must:
- Be in writing.
- Be dated.
- Explain the change they would like to their working pattern.
- Explain when they would like the change to come into force.
- Explain what effect the change would have on the business.
- Explain how such effects might be dealt with.
- State that it is a statutory request.
- State if the employee has made a request previously and if so when.
It is also advisable to date your request and note the date of any previous request.
An employee can only make one request under the statutory regime in any 12-month period.
We have useful advice on how to present and negotiate your request. We also have a template letter – Template Statutory Flexible Working Request Letter
There is an ACAS guide which sets out what employers have to do and what is good practice. The ACAS guide suggests that employees should state if they are making their request in relation to the Equality Act, the example it gives is a disabled person who wants to change their hours as a reasonable adjustment. It is recommended (but not required) that if you are asking for the change to care for a child or disabled person you state this on your application, with some detail about the impact on family life if it is turned down.
Once you have made the request, there is not much that an employer must do. The employer has three months to give you a decision (although this can be extended by agreement). If the employer turns down your request they must give one of the permitted business reasons. These are:
- Burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods you propose to work.
- Planned structural changes.
They may reject it also if you are not eligible to make the request.
There is no legal requirement for the rejection to be in writing (although the code says it is good practice for it to be), and there is no legal requirement for a right to appeal. So the only way an employer can breach the actual procedure is by either not giving one of the permitted reasons, by taking longer than three months to give you a decision or by giving reasons which are not factually correct.
However the ACAS code does set out many things that the employer should do as good practice. While there is nothing unlawful in the employer failing to do these things (the code uses the word “should” for things that are recommended but not legally required) an employment tribunal would take into account whether the employer had followed these steps.
An employer should:
- Arrange to discuss the request with the employee as soon as possible – see “meetings” below.
- Inform the employee if there is likely to be delay in processing the request.
- Consider the request carefully, looking at the benefits (for you but potentially also for the business) and weighing these against any adverse business impact of implementing the changes you request
- Allow the employee to discuss a refusal where there is new information or if the employee thinks the request wasn’t handled reasonably.
- Deal with appeals as quickly as possible where they are allowed.
There is no obligation on the employer to meet with the employee, but where it does so it should be in a place where it isn’t overheard by colleagues. There is no suggestion that the meeting should be face-to-face, a meeting over telephone would be acceptable.
The guidance says it is good practice to allow the employee to be accompanied by a colleague but does not say that the employer must or even should allow this.
If you cannot attend a meeting the employer should rearrange it. If you fail to attend two meetings then the employer can take your request to be withdrawn, although they should find out and consider your reasons for not attending first.
This guidance applies to initial meetings and (where allowed) appeal meetings.
Where an employer has multiple requests
Requests should be considered in the order that they are received, so if you know a change in circumstances is coming (for example a child changing school) you should make your request as early as you can. The guidance states that the employer is not required to make value judgements on which request is most deserving, but consider each request on its merits looking at the impact of refusing a request as well as the business case. The guidance suggests an employer discusses the issues with all the employees making a request before making a decision, but doesn’t say it should.
It is common for employers to allow a trial period of a flexible working arrangement. If this happens, you can agree with your employer to extend the time for them to make a final decision on your flexible working beyond three months of your original request.
Where an employer says no
Check with your employer to see if they allow appeals. If they do, then appeal. If they do not, it still could be worth writing to them explaining why you think their decision is wrong and asking them to reconsider, but bear in mind the time limits for bringing a claim in the employment tribunal, if applicable (see below). We have a draft appeal letter you can use as a template here: Appeal Letter following refusal of FWR.
If you think your employer has wrongly turned you down, we recommend that you put in a grievance. While a grievance would have no effect on a claim for breach of the procedure, failure to put in a grievance might reduce any award a tribunal made if you had a claim under the Equality Act (or the relevant discrimination legislation in Northern Ireland), such as sex discrimination (see below). A grievance also gives you another chance to sort things out with the employer, but don’t forget the time limits for bringing a tribunal claim.
Remember there is no general right to work flexibly but you may be able to make a tribunal claim if:
- Your employer did not give you an answer within three months.
- Your employer ‘s reason for refusing is not permitted.
- Your employer’s reason for refusing is not factually correct.
- Your employer failed to deal with your request in a reasonable manner.
- Your employer treated your request as withdrawn but neither of the grounds entitling the employer to do so applied.
You may also have a claim for direct or indirect sex discrimination if your reasons for requesting flexible working are to do with family responsibilities. Other discrimination may also apply, depending on the situation.
If you do not come to an agreement after the grievance, the next stage would be to bring an employment tribunal claim if you consider that the above circumstances apply. We recommend that you seek independent advice before doing this, but bear in mind the time limit for bringing claims is three months less a day from the relevant date, which is the first date on which you became entitled to bring a claim.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
Please click the link above for a detailed description of the process in Northern Ireland. The main differences (emphasis added in bold), however are set out below:
In NI, you should refer to the LRA guide, not the ACAS Code.
In addition, once you have submitted a statutory flexible working request, the employer has up to 14 weeks to give you a decision (although this can be extended by agreement). If the employer turns down your request, they must have a meeting to discuss within 28 days of receiving your application give one of the permitted business reasons. Having considered any proposals or suggestions, they must deliver a final decision in writing within 14 days of the meeting.
It is important to note that in NI, at the meeting to discuss the flexible working request, the employee is entitled to be accompanied by a colleague.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.