We have previously posted several blogs regarding flexible working, namely ‘The Impact of Coronavirus on Employment – The Home Working Revolution’, ‘The Future is Flexible Working’ and ‘Flexible working: Practical considerations for employers’.
In this post, we focus on considerations for you as an employee if you are thinking about requesting a change to your current working pattern.
The right to make a flexible working request
Provided you are an employee, have at least 26 weeks of service with the same employer, and have not made a previous request within the last 12 months, you have the right to request changes to your working pattern; you don’t have to be a parent or carer.
‘Flexible Working’ means altering the way you work. This could include changes to the hours you work (for example, compressing them, annualising them or changing to part-time or term-time only), a change to the times when you are required to work, or changes to your place of work (for example, working wholly or partly from home). These are examples, but there are very few limits as to what you could request by way of variation.
Making a Request
If you intend to request changes to the way you work, you should first check to see if your company has a Flexible Working Policy; this should be contained within your Staff Handbook. If a policy is in place, this will clearly identify the process for you to follow, and your employer may even have a specific form for you to fill in requesting your change.
If your employer does not have a policy in place, and there is no specific form to complete, then your application must:
- Be in writing.
- Be dated.
- State that it is an application made under the statutory procedure.
- Specify the change that you are seeking and when you would like the change to take effect.
- Explain what effect, if any, you think the change would have on your employer and how any such effect could be dealt with.
- State whether you have previously made a flexible working request to your employer and, if so, when.
Consideration of your Request
On receipt of a flexible working request, your employer must:
- Deal with it in a reasonable manner
- Notify you of their decision within the decision period (this is three months from the date of your request unless you agree to extend this period)
- Only refuse a request on one or more of the following grounds:
- the burden of additional costs
- detrimental effect on the ability to meet customer demand
- the work cannot be reorganised among other staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- there’s a lack of work to do during the hours you have proposed working
- the business is planning structural changes to the workforce
Employer’s Decision
Your employer can respond to your request in one of several ways; they can accept your request, propose an alternative, offer you a trial period or refuse the request (provided this is for one or more of the reasons set out above).
If your request is agreed, then your employer should issue you with a contract variation letter, setting out the change to your working pattern that has been agreed, and the date from which that change will take effect.
Unless your employer is able to agree to your request straight away, it is likely that they will invite you to a meeting to discuss your request in further detail. This would be your opportunity to explain in more detail why you are making the request, how you think it may impact the company and how that impact can be dealt with. For example, what will happen to other employees, or how can they deal with customer demand?
The meeting can also be used to discuss any other working patterns that you would consider (or that the employer may be able to offer) in case your original request cannot be agreed. Ultimately, the more flexible you can be in terms of what you are asking for, the harder it may be for your employer to refuse your request. If you’re fitting your request around childcare, it may therefore be worth making a request well in advance of making childcare arrangements, if possible.
If your employer is unsure whether they can agree to your request, they might offer you a trial period, to see how your requested working pattern will work in practice. Ideally, the start date and duration of any trial period should be clearly set out in writing for you, and a meeting scheduled towards the end of the period to discuss how it has gone. If your employer considers the trial has been a success, then they should confirm the change will be made permanent and issue you with a contract variation letter (as above). If your employer decides the trial has not been a success, then they must refuse your original request – this must still be for one or more of the reasons set out earlier.
Withdrawal of your Request
Your employer is entitled to treat your request as withdrawn if either of the following apply:
- You, without good reason, fail to attend both the first meeting arranged by your employer to discuss your request, and the next meeting arranged for that purpose; or
- Where your employer has allowed you to appeal the rejection of your request, and you, without good reason, fail to attend both the first meeting arranged by your employer to discuss your appeal, and the next meeting arranged for that purpose.
It is therefore crucial that you engage fully in the flexible working process once you have triggered this with your application. Ensure that you attend any meetings that your employer schedules, or, where you are unable to attend a certain time or date, make this clear to your employer and request that it be rescheduled at a mutually convenient time.
Working from Home and the Impact of Coronavirus
Previously, employers could rely on concerns surrounding costs, quality or customer demand to refuse applications to work from home. But now, employers could struggle to refuse a flexible working request to work from home as they did before, as it is likely they have successfully implemented working from home in during the last year and put that infrastructure in place. Presuming there was no impact on quality, performance etc. as a result of the pandemic, your employer will find it much harder to argue that they will not be able to accommodate home working on a permanent basis. Your employer could be putting themselves at risk of claims if they refuse such a request without a justifiable reason.
This, of course, is dependent on each individual and whether you were productive when working from home and still managed to excel in your role. But, broadly, it means that a flexible working request to work from home will be more difficult to refuse moving forward. Practically speaking, if you are requesting a permanent change to home working, it would be sensible to refer to your experience and performance during the pandemic, and any changes the company made to facilitate homeworking, setting out tried examples as to why this will not impact detrimentally on the company if it is made permanent.
Appealing the Decision
Whilst the legislation does not expressly require your employer to allow you to appeal their decision to reject a flexible working request, the Acas Code suggests you should be allowed to do so. Where possible, your appeal should be heard by someone who was not previously involved in the process.
There are no prescribed grounds of appeal, so you could appeal against either the decision itself or the application of the reason relied on. You can also raise any other points you believe to be relevant at the appeal meeting, as this is an opportunity for a review of your original request and for you to question in detail why the decision has been reached. You can also question whether the grounds for refusal were based on correct facts.
Potential Claims
You can make a complaint to an Employment Tribunal if your employer:
- fails to deal with your application in a reasonable manner;
- fails to notify you of their decision on your request within the decision period (or any agreed extension);
- fails to rely on one of the statutory grounds when refusing your application;
- bases its decision on incorrect facts; or
- treats your application as withdrawn when the grounds entitling them to do so do not apply.
In addition to the above, you may also be entitled to resign from your position and treat yourself as having been constructively dismissed. This is a risky position to put yourself in, so you should always seek independent legal advice before taking steps to resign.
You may also have a claim for discrimination if the reason for your request relates to disability or childcare reasons.
How we can help
If you have submitted a flexible working request and had it rejected, please don’t hesitate to get in touch if you think this rejection was unlawful.
From tribunal claims to draft grievances and appeal letters, we know how daunting the legal process can be for employees and we are here to help. We will take on your case from start to finish, ensuring you know exactly where you stand.
We can also support individuals by negotiating settlements agreements with your employer to get the best possible outcome for you. We provide these services whilst being as transparent as possible with you about the legal cost.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs.
By Crystal Boyde
Disclaimer
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk
