Your Guide to Flexible Working

With flexible working among the most valued benefits offered, employers might want to take a serious look at requests they receive from their team. In current times, with limited people to fill our roles, every single thing we can do to retain our team is a step in the right direction. We will take you through employers' responsibilities when they receive a request for flexible working.

What is flexible working?

We often think of flexible working as part time hours. There is no specific pattern or definition of flexible working other than the fact that it is a way of working that suits an employee’s needs. For example having flexible start and finish times, working from home, compressed hours or evening work.

Where we are today?

Under the Children and Families Act 2014 with effect from 30 June 2014 the statutory right to request flexible working provides all employees with 26 weeks continuous service the right to request flexible working. All employees have the legal right to request flexible working – not just parents and carers.

But please be aware that the UK government plans to introduce the right to flexible working?from day one?of employment. This will present new challenges to employers; flexible working requests are protected by the?Flexible Working Regulations 2014?and in some cases the?Equality Act 2010. So careful consideration should be made when reviewing these requests, not just from an employee attraction and retention perspective, but from a legal one.

How applications should be made

The Flexible Working Regulations set out that, as a minimum, the application must be in writing, state whether the employee has previously made any application to the employer and if so, when, and be dated. The Regulations make specific provision for electronic transmission of requests as long as this has been agreed by the employer and they have specified the email address and electronic form to be used by the employee.

An organisation’s response to a flexible working request

Prior to reviewing the request the organisation should consider:

1. That the application has been completed with sufficient information to enable a careful decision to be considered
2. The employee has had 26-week’s continuous service with the organisation
3. The employee has not submitted a request within the previous 12 months

If the above criteria are satisfied, the first step is to arrange a meeting with the employee to discuss their request. This meeting would include discussions around their reasons for the request, the organisations ability to meet this request and whether alternative flexible arrangements can be made to suit the needs of the organisation and employee (if required).

ACAS advise that this discussion can be held by email, on the phone or through video call but best practice would be to hold this conversation in person, with notes taken and in an area that is private, ensuring that you will not be disrupted.

While the regulations don’t set it out as a requirement, we’d suggest you allow for the employee to be accompanied to this meeting (and any subsequent meetings that might take place), by either a co-worker or trade union representative.

Timescales

The process must be completed within three months of first receiving the request, including any appeal. However, in reality this is a long time. We would urge employers to move quickly rather than wait until the end of this timeframe, or they risk disengaging or losing the employee.

If for some reason you can’t respond to the request within three months then an employer can extend this time limit, provided the employee agrees to the extension – the details of which must be confirmed in writing.

Refusing flexible working requests

The duty upon the employer is to consider requests for flexible working. There is no obligation to accept a requests?but?employers can only reject an application for one of the finite list of reasons defined in the regulations – listed below. Plus, the decision should be based on facts and evidence rather than personal opinion. The request can only be turned down if:

• it will cost your organisation too much
• you cannot reorganise the work among other staff
• you cannot recruit more staff
• there will be a negative effect on quality
• there will be a negative effect on the business’ ability to meet customer demand
• there will be a negative effect on performance
• there’s not enough work for your employee to do when they’ve requested to work
• there are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans

If the request is not acceptable, it would be best practice to consider alternative options (although there is currently no requirement to – watch this space!) For example implementing a?fixed term change to an employee’s contract to review the effect on the business.

In considering these business reasons an employer must be careful not to inadvertently discriminate against particular employees because of their protected characteristics under the Equality Act 2010 eg age, gender, disability. The guidance also states that employers should be careful not to directly or indirectly discriminate against employees, for instance, when dealing with requests from employees with childcare responsibilities.

Appeals

There’s no legal right for an employee to appeal a flexible working request. But if you consider their appeal, it can help resolve any issues your employee might have, without them taking it to an Employment Tribunal if they feel that they have a case of discrimination as mentioned above. If you reach the appeal stage or would like to discuss this further,?we are here to help.

Is flexible working a way to retain and attract talent?

The Good Work Survey conducted by Chartered Institute of Professional Development (CIPD) in 2022 has highlighted the main reasons for employees leaving their jobs and out of all respondents to the survey only 34% used the reason?‘better pay and benefits’ which highlights the need for organisation’s to look more carefully at their total reward packages to retain and attract employees. CIPD also highlighted in their report ‘A quarter of businesses unable to raise pay as inflation bites’ recommends that ‘employers look to other incentives to attract and retain talent’ adding that ‘flexible working was currently 'among the most valued benefits offered’. (CIPD, 2022)

For tailored advice in relation to flexible working requests or for assistance in creating a ‘Flexible Working Policy’ for your organisation do?get in touch today.

Author – Amy Slatter