Some employees will have a legal (‘statutory’) right to ask for a change to their contract with a ‘flexible working request’.
For example, they might ask to:
- reduce their hours to work part-time
- change their start and finish time
- have flexibility with their start and finish times (sometimes known as ‘flexitime’)
- do their hours over fewer days (‘compressed hours’)
- work from home or elsewhere (‘remote working’)
- share the job with someone else
The change could be for:
- all working days
- specific days or shifts only
- specific weeks only, for example during school term time
- a limited time, for example for 6 months only
Who has the right to request
Employees have the right to make a flexible working request if:
- you’ve employed them for at least 26 weeks
- they’re legally classed as an employee
- they’ve not made another flexible working request in the last 12 months
If the request is from a parent or carer
The right to request flexible working applies to all employees, including those who are:
- parents
- carers
- women returning from maternity leave
Requests from parents or carers should not be prioritised over requests from other employees.
There might be other ways parents or carers can take time off work. For example, using parental leave or time off for dependants.
Consider the flexible working request
If your employee has the right to make a flexible working request, it’s important to:
- ask for the request in writing
- consider the request fairly
- discuss it with your employee
- look at other options if the request is not possible
- make a decision based on facts and not personal opinion
- only turn down the request if there’s a valid business reason
- give your employee a decision within 3 months of receiving the request
If you need more time to make a decision, you can extend the time limit if your employee agrees.
If you approve your employee’s request, this will usually change the terms of the employment contract.
The importance of following the Acas Code
When making a decision on a flexible working request, you should follow the Acas Code of Practice on flexible working requests.
If a flexible working request case reaches an employment tribunal, judges will take into consideration whether you have followed the Acas Code of Practice on flexible working requests.
The Acas Code applies to those legally classed as employees with 26 weeks’ service.
Check your workplace’s policy
You might have your own code or policy with some differences that:
- better suits your workplace
- allows employees with less than 26 weeks’ service to make a request
- allows requests from those not legally classed as an employee
It’s a good idea to check your policy before making a decision on a flexible working request.
If you do not have a flexible working policy
The Acas Code of Practice on flexible working requests is the minimum you must follow. It’s also a good idea to have your own policy for flexible working requests. It can be stand-alone or part of a wider flexible working or equality policy.
Having your own policy can:
- help you make the process suit your workplace
- help you treat all requests in the same way
- make it easy for employees to find out how to make a request
It’s best to get input from your employees when you develop a new policy, including employee representatives or trade unions. This can help make sure your policy supports your business and your employees.
Once you have a policy, it’s a good idea to:
- share it with all employees
- train your line managers on how to manage flexible working requests
- review it periodically, for example every 12 months
If there’s more than one request
You should look at each flexible working request in the order you received them.
If you get the same request from different employees
If you approve a flexible working request for one employee, you do not necessarily have to approve the same request for other employees.
You should make a decision based on whether the business can support the change they’ve requested.Example
You get a flexible working request from 2 of your employees at the same time. They’ve both asked to work the morning shift 5 days a week.
You look at the business and realise you can only support one employee doing the morning shift 5 days a week.
You could either:
- explain your dilemma to the 2 employees and see if a compromise is possible, as long as you get their permission to discuss it with each other
- approve the first request you received
- choose one employee randomly, as long as you’ve made it clear to your employees your policy is to make a random selection
Discussing the request
You should set up a meeting to discuss the request with your employee before making a decision.
It can help to talk about:
- the change they’re asking for
- why they want the change
- any problems you see with making the change
- any other options, if the change is not possible
It’s a good idea to hold the meeting somewhere private, where you can talk confidentially. If you cannot meet face to face, you could also discuss it over the phone.
If your employee wants to bring someone to the meeting
Your employee might ask to bring someone to a flexible request meeting, for example a co-worker or trade union representative.
There’s no legal right for them to bring someone, but it’s good practice to allow it.
Allowing the employee to bring someone can:
- show your process is open and fair
- make the meeting more relaxed
- reduce anxiety or stress for your employee
- give your employee someone to talk through their options with
If the request is not possible
You can only turn down a flexible working request if there’s a valid business reason. It’s important to make your decision based on facts and not personal opinion.
By law, a request can only be turned down if:
- it will cost your business 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
Example
Colin works in a small call centre answering calls from customers in the United States. He asks to change his hours, to start at 7am instead of 11am each day so he can finish earlier.
Colin’s employer reviews the request and looks at the call patterns. There are only a few calls between 7am and 11am, and making the change would mean there’d be fewer people to cover peak call times later in the day.
Colin’s employer cannot agree to the request because there’s not enough work for him to do and it would have a negative effect on meeting customer demand.
Consider other options
If your employee’s request is not possible, there might be a way to find another option.
Trying to find a compromise can help keep good working relationships and keep staff. For example:
- if you cannot make a change permanently, you could look at making the change for 6 months only
- if you cannot have someone working part-time every week, you could look into a fortnightly part-time work pattern
- if you cannot make a change on all working days, you could look at making the change on some working days only
It’s a good idea to talk to your employee and:
- explain why you cannot make the changes they initially requested
- listen to their reasons for requesting the change
- suggest any other possible options
- ask if they have any ideas for other options
Example
Angela is an experienced mechanic working at a small garage. She wants to reduce her hours to spend more time with her grandchildren so she makes a flexible working request to her employer.
The other mechanics are junior and Angela’s employer is concerned they cannot handle difficult repair jobs yet.
Angela’s employer decides to turn down her request because there will be a negative effect on quality and the business’ ability to meet customer demand.
But they agree to look at the request again after the other mechanics have been up-skilled. Angela’s employer confirms in writing that she can make another flexible working request in 6 months’ time.
If you’re not sure how a change will work in practice, a trial might help make a decision.
Example
Raj is an estate agent working at a small estate agency. He asks to work compressed hours over 4 days. This means he would work 7am to 7pm over 4 days so he can have Thursdays off to study.
Raj’s employer is worried the business will lose sales and get complaints if Raj is not available on Thursdays. For these reasons, Raj’s employer considers refusing his request. However, his employer values Raj and wants to keep him.
Raj and his employer agree to try the compressed hours for 10 weeks, and then make a decision.
During the trial, other staff successfully deal with customer enquiries on Thursdays and Raj’s meets his sales targets. Raj’s employer also finds some customers like being able to reach Raj outside normal office hours Monday to Wednesday.
As the trial is a success, Raj’s employer agrees to continue with the new working hours.
Discrimination and flexible working requests
It’s usually against the law to turn down an employee’s flexible working request because of their:
- age
- disability
- race
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sex
- sexual orientation
If you cannot make the change your employee has asked for, you should look at other ways to support them and avoid discrimination.
For example, if your employee makes a flexible working request because of a disability they have, you could treat this as a reasonable adjustment request instead. This means you look at your employee’s request in context of their disability and how you can best support them.
Once you’ve made a decision
It’s a good idea to give your employee a decision as soon as possible.
There is a time limit of a maximum of 3 months of receiving a request for you to give a decision.
If you need more time, you can only extend the time limit if your employee agrees.
If you agree to the request
If you approve the request, it’s a good idea to confirm it in writing, including:
- the agreed change
- when the change will start
- how long the change will last, if for a fixed period of time
- a review date, if the change will be looked at to see how it’s going
When changes must be in writing
If the change affects anything that must legally be in your employee’s employment contract, you’ll need to put it in writing. You must do this within a month of the change taking effect.
This includes changes to:
- working hours
- pay
- job location
- holiday entitlement
If you turn down the request
You must let your employee know, and give the reason for turning down their request.
It’s a good idea to do this in writing.
Need help with a flexible working request? Contact Beagle HR for support
This article is adapted from the ACAS Website
