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Managing Flexible Work Requests

flexible work requestsThe pandemic ushered in a revolution in flexible working, with most office based staff required to work from home. Many such staff embraced that flexibility, and some made lifestyle changes around it.

For some employers, that flexibility suits the business. They’ve been able to save money by downsizing office space or doing away with a permanent office altogether. For others, being onsite matters.

Flexible working is not just about homeworking: it encompasses changes to working hours – going part time, working compressed hours, or working outside usual office hours. It might involve job shares or team based rostering.

Employees have had the right to request flexible working for over 20 years now but the flexibility many experienced during the pandemic has led to a higher profile for those who don’t work the traditional 9 to 5 in an office. Legislation that came into force in April 2024 opened the ability to request flexible working to all employees and made some notable changes to the existing procedures. We recommend that all employers audit their flexible working policies to ensure that they comply with these changes.

We can help employers by:

  • Drafting or amending Flexible Working Policies
  • Advising on flexible work requests made by employees and the risks of refusal
  • Coaching employers through handling a request
  • Helping to draft refusals of requests
  • Defending Employment Tribunal claims brought by employees regarding flexible working

If you require specialist legal advice or assistance relating to flexible work requests then get in touch with one of our experienced Employment Lawyers by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.

Who can make a flexible work request?

Since April 2024, all employees can make a flexible work request, from day one of their employment. There is no requirement to give a reason for the request, such as childcare or a need to care for an elderly relative. Employers should however bear in mind that inflexible working practices may be indirectly discriminatory to those with caring responsibilities, both women and men. Particular care should therefore be taken with flexible work requests designed to accommodate caring responsibilities.

Can a flexible work request be refused?

A flexible work request can be refused for one or more of the following business reasons:

  • Burden of additional costs
  • Inability to reorganise work amongst existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Detrimental impact on ability to meet customer demand
  • Insufficient work available for the periods the employee proposes to work

Flexible working refusals can be challenged in the Employment Tribunal if they are based on incorrect facts. Care should therefore be taken to justify refusal with regard to the particular request and the particular circumstances of the employer, rather than simply quoting one of the named business reasons.

Employees seeking flexible working to manage caring responsibilities could have claims for indirect discrimination if their request is refused. Particular care should be taken to ensure that refusals of such requests are proportionate to the needs of the employer.

Can flexible working be temporary?

A formal flexible work request results in a permanent change to the Contract of Employment. It is however open to employers to agree trial periods. The ACAS Code of Practice on Flexible Working Requests suggests that trial periods may be helpful to assess the feasibility of an arrangement.

Informally, employers can agree a temporary change with employees, though this would not result in changes to the Contract of Employment.

How should employers consult with employees who make flexible work requests?

One of the changes made in April 2024 was to introduce a requirement to consult with an employee before rejecting a request. The ACAS Code of Practice on Flexible Working Requests suggests holding a meeting that allows for reasonable discussion and consideration of the request. It suggests that the discussion encompasses the impact of accepting or rejecting the request and practical considerations involved in implementing the flexible working request. ACAS also suggest that the consultation should involve a discussion about potential modifications to the flexible work request or alternative flexible working options that may be available and suitable for both employer and employee.

Who should attend a flexible working consultation meeting?

There is no statutory right for an employee to be accompanied at a flexible working consultation meeting but the ACAS Code of Practice on Flexible Working Requests says that it is good practice. It suggests that it can be helpful in giving employees confidence to make requests and to support both employer and employee to find a mutually agreeable solution.

The employer representative should be someone with authority to make a decision but who is close enough to the employee’s work to be able to understand the implications of their flexible work request.

Can the employee appeal against a refusal of a flexible work request?

There is no statutory right to appeal against a refusal of a flexible work request but the ACAS Code of Practice suggests that it is good practice. Ideally, an appeal should be held by someone with more authority that the original decision maker, who has not been involved in the original decision.

How Elite Law Solicitors can help

At Elite Law Solicitors out experienced Employment Lawyers can help employers by:

  • Drafting or amending Flexible Working Policies
  • Advising on flexible work requests made by employees and the risks of refusal
  • Coaching employers through handling a request
  • Helping to draft refusals of requests
  • Defending Employment Tribunal claims brought by employees regarding flexible working

If you require specialist legal advice or assistance relating to flexible work requests then get in touch with one of our experienced Employment Lawyers by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.

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