I Am an Employer. Are My Employees Entitled to Flexible Work Arrangements in England and Wales?

When your employee has responsibilities away from the workplace, they may make a flexible working request with you. This flexibility will enable your employee to attend to these responsibilities, such as childcare, whilst attending to their work obligations in a way that is slightly different from what is standard. It is important to work with your employees whenever possible to promote a productive workforce and have good employment relations. However, there are rules regarding when your employee is legally entitled to make a request for flexible working arrangements and how they should do so. There are also rules concerning how you should respond to a request for a flexible work arrangement. 

It is critical that you understand the law around flexible working arrangements for employees, because where an employee disagrees with your decision, they may take further action. This could be formal action such as a grievance or a claim to an employment tribunal. This article will explain what flexible working means, examples of flexible working arrangements, and the rules around flexible working requests in England and Wales. 

What is Flexible Working?

If an employee makes a flexible working request, they are asking for changes to the usual pattern they work. This could mean that they are asking to:

• work part-time;
• start or finish the day at a different time;
• work the same hours but carrying the work out over fewer days – termed ‘compressed hours’;
• work in shifts;
• vary the time of the day at which they start and finish working – sometimes termed ‘flexitime’;
• work in annual hours rather than weekly hours;
• work all or some of the time remotely; or
• job-share the role.

When Can an Employee Make a Flexible Working Request?

Your employee has a legal right to make a flexible working request if:

• they have worked for you for a minimum of 26 weeks; 
• the law considers them to be employees; and
• over the last 12 months, they have not previously requested to work flexibly.

This is known as a ‘statutory flexible working request’.

However, an employee may also make a non-statutory flexible working request to you. This could be where they do not meet the criteria to make a statutory requirement or because they have chosen to make a non-statutory one, perhaps because the changes requested are not significant. There are no set rules about making or responding to a non-statutory flexible working request.

When your employee makes a statutory flexible working request, they should do so in writing, and it should outline:

• that it is a ‘statutory flexible working request’;
• the date it is written;
• what the flexible working request is;
• the date the request for flexible working should ideally take place;
• the dates of any other flexible working request they have made to you;
• suggestions about how the workplace may respond to the consequences of their flexible working request; and
• if the request is linked to discrimination law.

In addition to the right to request flexible working, there are rights your employees may have in terms of taking time off work. For example, parents or carers may have the right to request parental leave or time off in relation to their dependents. However, a statutory flexible working request is not linked to only parents and carers.

What Should You Do if Your Employee Requests Flexible Working Arrangements?

If your employee makes a flexible working request, you have a responsibility to respond fairly and deal with all flexible working requests in the same way. Therefore, you must respond reasonably to all flexible working requests. To ensure that you respond reasonably, you should follow the Acas Code of Practice on flexible working requests. The process is summarised below. 

Hold a Meeting

Before deciding on your employee’s flexible working request, you must meet with the employee first to discuss their wishes. At this meeting, your employee may talk to you about why they have requested to work flexibly. They may also discuss how they intend to address any potential issues relating to it and what other options might be available to them should you not allow their flexible working request.

Approving the Flexible Working Request

When you decide to approve your employee’s flexible working request, you must state this in writing. This should state the change, when it will start, its duration, and any review date. You must give your employee a decision about their flexible working request within three months of the request. 

However, sometimes approval of a flexible working request will change your employee’s contract terms. This could be where the change affects:

• their hours of work;
• their pay;
• where their work is based; or
• their holiday entitlement.

The law states that where a flexible working request causes a change that would typically be in their employment contract, you must state it in writing within a month of their flexible working request change.

Refusing a Flexible Working Request

You have a legal right to refuse your employee’s request for flexible working where you have a good business reason for refusing it. This could be where:

• the cost is too great;
• you can distribute the work affected effectively, or you are unable to employ extra staff;
• it will negatively affect the work quality;
• there will be a detrimental impact towards meeting customer needs;
• the work pattern does not cover time where work is available for your employee; or
• the flexible working request clashes with planned further changes to your business.

If you refuse a flexible working request, it is advisable that you informally discuss your reasons with your employee. If your employee feels that your decision was unfair or wrong, they may wish to appeal the decision.

What Can Your Employee Do if They Disagree With Your Decision?

There are two routes available to your employee if they disagree with your decision. 

Appeal

If an employee disagrees with your refusal of their flexible working request, they may decide to appeal it. If so, they should do this as quickly as possible and in writing. You may have a timeframe for this within one of your work policies.

You have the right to decide whether to consider your employee’s appeal or not. If you choose to consider it, you must do so within three months, but you may take longer when your employee agrees to a longer time frame.

Make a Complaint

If, after appeal, your employee is still not satisfied with your decision, they may want to make a formal complaint which could consist of:

• raising a grievance if the flexible working request appears to have been dealt with unfairly;
• taking the issue to an employment tribunal where the flexible working request appears to be refused without a valid business reason or dealt with in a discriminatory way without using the Acas Code of Practice on flexible working requests;
• raising the issue with the Acas arbitration scheme; or
• discussion through mediation to try to reach an agreement.

Key Takeaways

As an employer, your employees may have a legal right to make a flexible working request. However, you may also allow your employee to make flexible working requests where they do not have a legal right. Where an employee has a legal right to flexible working, there are rules about how you should respond to this, such as doing so within a specific timeframe and considering requests fairly and reasonably.

If you need help understanding flexible working arrangements in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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