workingmums.co.uk’s guide to negotiating flexible working

Covid brought a big increase in remote and hybrid working. Despite the emphasis on flexible working, however narrowly defined, legally there are no greater rights to flexible working as a result of the pandemic. There was a consultation to make flexible working a day one right last year. This was due to form part of the delayed Employment Bill, but this has since been shelved and there is a new, narrower ‘future of work’ review taking place over the summer which will look at “how to build on ‘good’ flexibility in the labour market and gig economy”.

So, what are your legal rights and how can you best negotiate flexible working?

To be eligible to apply to work flexibly the applicant must:

• Be an employee with 26 weeks continuous service on the date the application is made.
• Not have made another application to work flexibly under this right during the past 12 months.

The application from the individual must be made to the employer in writing by email or letter. The application must include:

• the date
• a statement that this is a statutory request
• details of how the employee wants to work flexibly and when they want to start
• an explanation of how they think flexible working might affect the business and how this could be dealt with, eg if they’re not at work on certain days
• a statement saying if and when they’ve made a previous application

The Process

The basic steps are:

• The employee writes to the employer.
• The employer considers the request and makes a decision within three months – or longer if agreed with the employee. Employers must deal with requests in a ‘reasonable manner’. Examples of handling requests in a reasonable manner include: assessing the advantages and disadvantages of the application; holding a meeting to discuss the request with the employee; and offering an appeal process.
• If the employer agrees to the request, they must change the terms and conditions in the employee’s contract. This should be done as soon as possible, but no later than 28 days after the request was approved.
• If the employer disagrees, they must write to the employee giving the business reasons for the refusal. The employee may be able to complain to an employment tribunal.

The employers can refuse a request on eight grounds and will need to be made to the application in writing:

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

The reason needs to be detailed clearly in the letter. There is no statutory right to appeal against a rejection, but it is advised under the terms of handling a request in a reasonable fashion. Failure to follow the guidelines could lead to a claim – the time limit for bringing a claim to an employment tribunal is three months from the date the employee is notified of the decision on appeal or breach of this procedure. If the claim is successful, the tribunal may order the employer to reconsider the request and award maximum compensation of eight weeks’ pay.

How to negotiate your case

One of the sticking points for those seeking to get their employer to consider their case is the provision under the flexible working legislation that applicants must explain how they think flexible working might affect their employer and how this could be dealt with. The idea behind this is that flexible working should be, as much as possible, a mutually beneficial arrangement.

But how do you argue your case when the main reason you want to change your hours is because of childcare arrangements? How do you make a business case for that?

Many applicants struggle with this and the best employers try to engage employees in conversations about what might work best. But for most there is little support for employees over how to make this business case and it can be hard to know what will work best.

The main thing is to try and put yourself in the employer’s position and to pre-empt any potential difficulties your request might bring and to be honest, for instance, if there are additional costs involved it is important to admit and justify them.

That can involve showing how your work can successfully be carried out under the proposed new working pattern, demonstrating that it will not harm the business and pointing out that it may even have business advantages. To do this you may have to sound out colleagues beforehand to ensure they are on side. If requesting remote working, it may be that there are parts of a job that can be done more effectively from home without distraction, such as analysis, reading, strategic thinking or writing reports.

For job shares, it is worth putting forward how this might work in terms of handovers, communication with team members or clients and so forth and researching examples of successful job share partnerships. Job shares are still rare enough for many managers not to have come across them so they may need persuading. Demonstrating that everything has been thought through will help.

For part-time work, it is important to think through whether there are certain days or hours which need less cover. Are there certain tasks that could be delegated allowing other staff the chance to act up? If managers are dubious, it might be worth suggesting a trial period, but those opting for should ensure there is a proper review process.

It is important to methodically think through the tasks a job involves and whether they can be done differently, from a different location, at different times and so forth.

It is also good to have a compromise solution, since the flexible working process is a negotiation. It may be, for instance, that with some homeworking a person who requests part time could work full time or that they could work less at certain less busy times of the year.

If agreed, your flexible working becomes part of your permanent contract and gives you certain protections which an informal agreement would not. Once submitted, you cannot apply for flexible working again for another year.

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