What you need to understand about the flexible working process

How can we support employers with flexible working? When your employee gives you a flexible working request do you know legally what you need to do? If not, read on…

Businesses need to look at a variety of methods to help close the gender pay gap and one such way is flexible working.

The Chartered Management Institute’s (CMI) most recent report shows that in the five years since the statutory change stipulating that any employee with 26 weeks continuous service can make a request for flexible working, understanding of the legalisation is worryingly low from UK managers. In fact, they report that “only one in four managers fully understand the existing right to request legislation”.

Benefits of flexible working to businesses can include:

• Increased employee motivation
• Better work life balance
• Greater job satisfaction
• Attraction and retention of talent
• Reduced office costs/stress
• Productivity boost

Considering a flexible working application

So, what do you need to do when legally considering a flexible working application?

As an employer there are three legal points you can be in breach of if you do not:

• Give one of the eight legal reasons for rejection to the employee (see below)
• Take longer than three months to complete the whole process (from start to finish)
• Give any reason for rejecting the application that isn’t factually correct.

The eight allowable legal reasons for rejection of a flexible working application are:

1. Burden of additional costs
2. Detrimental effect on ability to meeting customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the period the employee proposes to work
8. Planned structural changes

There is no legal right for the outcome of the flexible working request to be in writing or even to hold an appeal, but it is best practice to do so.

You must state at least one of these reasons if you are rejecting a flexible working application.

Right to request flexible working

Any employee can apply for flexible working as long as they have 26 weeks continuous service and it can be for any reason they wish. The law used to state you had to be parent to request this right, but this is no longer the case.

Once your employee submits a flexible working application the first thing you should do is set up a meeting (ideally face to face) as soon as possible after receiving the application.

You do not need to make a decision at the meeting – you can do this after and write to the employee with the outcome.

After the meeting if you agree to the request, the employee must receive the agreement in writing, with the date this is effective from and any other changes. An amendment to/ new contract or statement of terms and conditions must be issued within 28 days of the agreement to the changes.

If you refuse the flexible working application

If you do not agree to the application and if you cannot come to a compromise then you will need to write to the employee to confirm why the request is refused (citing one of the eight reasons above).

It is best practice to give the option of appeal to the employee so you can continue to discuss alternative patterns of flexible working or even a trial period.

After the appeal hearing it is best practice to write to the employee with the outcome of the appeal and why, if that is the case, the application has been declined again.

The whole process from receipt of the application to the final decision being made must be completed within three months.

The employee has the right to make another application 12 months after the last application.

*With over 12 years’ experience as a HR Consultant, and having helped hundreds of individuals with flexible working applications and appeals over the last two years, I now also offer a flexible working helpline for employers/ managers – To book a call please email [email protected] or to find out more.

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