Flexible Working Advice - Employment Law Solicitors York, Wetherby & Malton

Flexible Working: What Employers Need to Know

Under the Employment Rights Act 1996, all employees who have been continuously employed for 26 weeks or more have a right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly.

The right does not apply to self-employed contractors, consultants, agency workers or employee shareholders (with the exception of those returning from a period of parental leave).

When considering an application for flexible working, employers are required to "deal with the application in a reasonable manner."

If an employer receives a request from an employee for flexible working, the request should set out the change that the employee is seeking, when they would like it to take effect, the effect that the employee thinks the change will have on the business and how that effect can be dealt with.

The employer must then consider the request and arrange to meet the employee as soon as possible.

At the meeting, the employer should discuss the request in private but the employee should be allowed to be accompanied by a work colleague or a Union representative if they wish.

The employer must then consider the request. If the employer rejects the request it can only be on the basis of one or more of the following business reasons:-

1. The burden of any additional costs is unacceptable to the organisation.
2. An inability to reorganise work among existing staff.
3. Inability to recruit additional staff.
4. The employer considers the change will have a detrimental impact on quality.
5. The employer considers the change would have a detrimental effect on the business's ability to meet customer demand.
6. Detrimental impact on performance.
7. There is insufficient work during the periods the employee proposes to work.
8. Planned structural change, for example where the employer intends to re-organise or change the business and considers the flexible working changes may not fit with these plans.

The employer should inform the employee of the decision in writing. If the request is accepted either as proposed or subject to some modifications then the implementation of the proposals should be discussed. If the request is rejected then the employee should be informed they have a right to appeal the decision.

There should be a fresh discussion of the application at the appeal stage.

The whole process should be dealt with within 3 months, or to a later date by mutual agreement.

There is a Code of Practice and guidance available from ACAS which can be accessed online.

An employee has the right to bring a claim to an Employment Tribunal if the employer does not deal with the application in a reasonable manner, or does not notify the employee of the decision within 3 months (or the date which they have agreed if the 3 months is extended), or where none of the 8 specified business reasons apply.

Although anyone can apply for flexible working, if a person with caring responsibilities for either a child or a disabled adult applies then, in addition to the above claim, an employee could claim that they have been subjected to indirect discrimination contrary to the Equality Act. A Tribunal would then need to consider whether the reason for refusal of the request was a proportionate means of achieving a legitimate aim.

Ware & Kay can assist you in drawing up a suitable flexible working policy for your business and can also provide feedback on any existing policies or advise on flexible working requests and how best to deal with them.

NB. This guide does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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