Extending flexible working for all employees

The right to request flexible working has been extended to all employees who have been with an organisation for over six months.

The legislation differs slightly from previous legislation on flexible working with an emphasis on considering requests in “a reasonable manner”, with the whole process taking three months [unless otherwise agreed with the employee] rather than following a tighter timetable as in the past.

Making an application

To make a request for flexible working, employees must write to their employer, putting:

• the date of the application, the changes they are requesting and when they want the change to start
• what impact they think the requested change would have on the employer and how, in their opinion, any such effect might be dealt with.
• That this is a statutory request and if they have made a previous application for flexible working, they must put the date of that application.

Employers need to outline this process. Only one request for flexible working can be made in any 12-month period.

Handling the request

When they receive a request, the employer should arrange to meet to discuss it “as soon as possible”. They should inform the employee if there is likely to be a delay.

Acas says: “It is important that an employer deals with requests in a timely manner as the law requires the consideration process be completed within three months of first receiving the request, including any appeal.

If for some reason the request cannot be dealt  with within three months then an employer can extend this time limit, provided the employee agrees to the extension.”

A discussion may not always be necessary if the employer agrees to the request straight away.

It does not have to be held face to face and can be done over the phone.

Employees do not have a statutory right to be accompanied by a colleague for the discussion, but Acas says it is good practice to allow this.

The employee should be told this before the meeting.

The employer must notify the employee of the decision.

Deciding on a request

An employer should consider the request “carefully looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes”.

Employers do not have to grant requests and can turn them down on the following grounds:

1. The additional costs will impose a burden
2. Agreeing to the request will have a detrimental effect on ability to meet customer demand
3. Inability to re-organise work among existing staff
4. Inability to recruit additional staff
5. Agreeing to the request will have a detrimental impact on quality or performance
6. There is insufficient work during the periods the employee proposes to work
7. There are planned structural changes.

If the request is agreed, a start time must be given, confirm any compromise agreement and spell out any points for review if the agreement is subject to review.

If it is rejected, the employer must set out the reasons and the appeal process. Where the request is granted it is important to set out what changes will be made to the employee’s terms and conditions.

Acas says it is good practice to spell all this out in writing.

In rejecting a request, employers should be carefully not to directly or indirectly discriminate against employees, for instance, when dealing with requests from employees with childcare responsibilities.

If several flexible working requests are received, they should be considered in the order they are received.

Having  considered and approved the first request the employer should remember that the business context has now changed and can be taken into account when considering the second request against the business reasons allowed for rejecting a request.

Each case must be judged on its business merits. Acas notes that it is good practice if several people are already working flexibly and further flexible working could impact on the business to ask those other people if they would be willing to change their contracts to accommodate a new flexible working request.

There is no statutory right to appeal a decision, but it is considered good practice for employers to offer an appeal if there is new information available which affects the request or if the employee believes the application was not handle reasonably.

According to Acas, any appeals should be dealt with as quickly as possible with the whole request including any appeal being heard within three months of first receiving the original request for flexible working unless an extension is agreed with the employee.

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