The coronavirus pandemic required flexibility from everyone, as we adapted to working, studying and, frankly, doing everything from home. With the pandemic still ongoing, and it being clear that flexible working works well for some, it looks like it’s here to stay.
As flexible working shifts from an emergency measure to a way of life, Swan Craig Solicitors are here to tell you about the legal side of it. You’ll soon be clued up on your rights and know exactly how to go about making flexible working a permanent fixture in your life.
What is flexible working?
A lot of people ask “what is flexible working?” as it is not what it used to be. Put simply, flexible working is amending the employee’s normal (regular) working pattern from what was originally put in place. If a flexible working request has not been made, this could be from the role the employee was originally employed to do. Alternatively, as roles can naturally adapt over the years (and the paperwork rarely is kept up to date) it will be amending the role currently worked.
The pandemic unofficially broadened the understanding of flexible working, so there may now be more options available to employees which had not been considered previously.
The legal right to amend the working pattern has always been in respect of an amendment to hours worked, days worked and place of work.
Following the need for greater flexibility, examples of flexible working arrangements include:
- Reducing or increasing hours
- Changing hours to fit other commitments
- Flexitime (fitting working hours around agreed core times)
- Working remotely full-time or part-time
- Job sharing
- Annualised hours (working a given number of hours in a year but pattern isn’t fixed).
A classic example would have been for an employee working full time, who then takes maternity leave, applies to return on a part time basis. Following the Covid pandemic, an example now could be that an employee wishes to work from home more days per week rather than return to their place of work for the full duration of their contracted hours/days. Others see employees wanting to enjoy a greater work/life balance and requesting their full time hours spread over a four day working week instead of over five days.
Your rights at work
At present, an employee has a legal right to request flexible working if they have worked somewhere for 26 continuous weeks* (see NHS employees below), are classed as an employee (it does not apply to agency workers unless they are returning from a period of parental leave), and haven’t requested any other flexible working in the past year (being in the last full 12 months).
NB for NHS employees
* NHS employees – from 13th September 2021, the requirement to have 26 weeks’ continuous service for NHS staff has been removed. NHS employees from that date have been able to make a flexible working request from day one of their employment due to amendments to the flexible working provisions contained in the NHS Terms and Conditions of Service handbook.
The government is currently proposing legislation to make this right to request available from the first day of employment for all employees.
It used to be the case that only employees who had childcare responsibilities, or cared for vulnerable adults had the right to make a request. Since 2014, as above, the criteria to apply only relates to the employment status, length of service and timing of a previous request.
The right to flexible working is only a right to make a flexible working request application, it is not an automatic right for the employer to have to agree. However, there is a statutory process which should be followed. Most employers tend to have their own flexible working policy, however, they should still mirror the statutory process.
The request process
If you are legally entitled, you can apply in writing to your employer. Your application must include:
- Details of the proposed flexible arrangement
- The effect you think it’ll have on the business (i.e. why you say it can work and be accommodated)
- The proposed start date of flexible working
- A statement that this is a statutory request, whether a request has previously been made and, if so, its date.
First things first, your employer must consider your request, they cannot legally immediately turn it down. They must consider it in a ‘reasonable manner’, e.g. assessing advantages and disadvantages, or holding meetings with the employee. They must also follow official guidance on flexible working requests and come to a decision (which includes any appeal process) within a maximum of three months.
In practice, a good procedure looks like this:
Some employers will allow you to request flexible working regardless of your legal right to do so, although this depends on your workplace’s policy as it is at their discretion.
What if my employer refuses?
They can only refuse if there’s a clear business reason, as set out in the legislation. There are only eight business reasons upon which the employer can rely on. Simply because the employer “doesn’t want to set a precedent” or because it is not convenient for the employer is not a permitted ground to refuse.
If your employer refuses, you have a right of appeal. Your appeal should set out your arguments as to why the initial rejection is being challenged. It may be there is a technical reason, such as not relying on a proper business ground. It may be they have overlooked part of your rationale in support of your application. The person who conducts the appeal must be impartial (where possible as some micro employers may only have one business owner/decision maker).
If the appeal is dismissed you will have limited means of next steps subject to the reason for refusal. We recommend initially trying to deal with it internally, be that an informal discussion, negotiation, or grievance resolution process subject to the basis of the refusal. If the employer has a genuine business reason (one of the eight permitted) then using the grievance procedure may not be an option. The employer will be able to explain that the appeal process has been heard so there is no further ‘right of appeal’.
Alternatively, you can involve an external third party such as Acas (the Advisory, Conciliation and Arbitration Service) or another mediator. They’ll attempt to resolve the issue informally by mediating discussions between the parties.
If this doesn’t resolve the problem, you may be able to address the issue to an employment tribunal and make a claim against the employer if the proper procedure wasn’t followed. We would recommend that you seek legal advice before embarking on an employment tribunal claim to ascertain if you have a claim which has reasonable chances of success. If your employer has a valid business reason but you just don’t like the fact your application has been turned down, you may not have grounds to start an employment tribunal claim.
Starting litigation should always be a very last resort given the time, stress and costs involved.
Whether you’re involved in a dispute at work, or you’re considering changes to your working pattern and want some guidance, Swan Craig Solicitors can help. Our team of expert solicitors are dedicated to providing you with the utmost support throughout the process, offering advice and representation at every stage. Get in touch today to find out more about what we can do for you.