What does the right to work flexibly mean for your company

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March 4, 2016
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What does the right to work flexibly mean for your company

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Working Flexibly – What does it mean for your company?
On 30th June 2014, the right to work flexibly was extended to all in the UK.

8 million people work part time (30 hours a week or less) and around 4 million usually work from home. Research has shown that an additional 8.7 million UK-based full time workers want to work flexibly right now (whether part time or more remotely), accounting for two in every five.

So what does this mean for you as an employer?

Previously, only employees with children under 17 (or those with disabled children under 18) and those who have responsibilities as a carer have a right to request flexible working. The new law extends this right, and means that, from 30 June 2014, any employee with 26 weeks’ continuous service will be able to make an application to work flexibly for any reason.

However, it’s not all bad news for employers – they will receive some flexibility too. The new law dispenses with the statutory procedure for consideration of flexible working requests, replacing it with a duty on employers to deal with requests in a ‘reasonable’ manner.

The legislation does not give employees the right to work flexibly. Instead it provides a right to request flexible working. Eligible employees can request a change to working hours, working time or working location. This includes a wide range of working patterns, such as job sharing, working from home, part time working, compressed hours and flexitime. Currently, any employee with caring responsibilities can make a request for flexible working. The employee must have 26 weeks’ continuous employment and must not have made a flexible working request in the past 12 months.

Flexible working opportunities can benefit everyone: employers, employees and their families. Most employers now recognise that it makes good business sense to provide flexible working opportunities for their staff.

What is ‘flexible working’?

‘Flexible working’ is a phrase that describes any working pattern adapted to suit an employees needs. Common types of flexible working are:

  • part-time: working less than the normal hours, perhaps by working fewer days per week
  • flexi-time: choosing when to work (there’s usually a core period during which you have to work)
  • annualised hours: hours are worked out over a year (often in set shifts with you deciding when to work the other hours)
  • compressed hours: working agreed hours over fewer days
  • staggered hours: different starting, break and finishing times for employees in the same workplace
  • job sharing: sharing a job designed for one person with someone else
    home working: working from home

Who can ask for flexible working?

Anyone can ask their employer for flexible working arrangements, but the law provides some employees with the statutory right to request a flexible working pattern.

They must:

  • be an employee, but not an agency worker (other that those returning from a period of parental leave) or in the armed forces
  • have worked for their employer for 26 weeks continuously before applying
  • have not made another application to work flexibly under the right during the past 12 months

They will then have the statutory right to ask if they:

  • have or expect to have parental responsibility of a child aged under 17
  • have or expect to have parental responsibility of a disabled child under 18 who receives Disability Living Allowance (DLA)
  • are the parent/guardian/special guardian/foster parent/private foster carer or as the holder of a residence order or the spouse, partner or civil partner of one of these and are applying to care for the child
  • are a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or who although not related to them, lives at the same address as them.

Under the law an employer must seriously consider any application an employee makes, and only reject it if there are good business reasons for doing so. An employee has the right to ask for flexible working – not the right to have it. Employers can reasonably decline an application where there is a legitimate business ground.
Employees who do not have the legal right to request flexible working are of course free to ask their employer if they can work flexibly, many employers are willing to consider such requests.

What is the Process?

The employee must apply in writing.

The application must include:

  • Details of the change they are asking for.
  • What effect they think the change would have on the business and how the business could handle it.
  • The date the request is made and the date they would like the change to start.
  • A statement that this is a statutory request for flexible working, whether or not they have made a request previously and if so its date.

You must consider the request in a ‘reasonable manner’.

Arrange to discuss the request with the employee as soon as possible.

  • If the employee fails to attend two or more meetings (without a reasonable explanation), you may treat the application as withdrawn.
  • Allow the employee to be accompanied by a work colleague if they want.
  • Weigh the benefits of the proposed changes against any adverse impact on the business.
  • Let the employee know your decision as soon as possible.
  • Allow the employee a right of appeal.

Although you are not required to follow the code of practice, it is taken into account if the employee complains to an employment tribunal.

You can negotiate with the employee to agree changes to what they are proposing.

  • If you are unsure what the impact on your business would be, you might suggest agreeing to the changes on a temporary or trial basis.
  • You may want to agree in advance to review how any new arrangements are working after a specified time. You will then be able to make changes if necessary.

You can refuse an application to work flexibly only if there is a clear business reason.

This must be one of the reasons set out by the legislation:

  • The burden of additional costs.
  • A detrimental effect on the ability to meet customer demand.
  • An inability to reorganise work among other employees.
  • An inability to recruit additional employees.
  • A detrimental effect on quality.
  • A detrimental effect on performance.
  • Insufficient work at the times when the employee proposes to work.
  • Planned structural changes.

You must reach your decision within three months.

This deadline can be extended if the employee agrees.

If you refuse the application, the employee may want to take further steps. Or, you might encourage them to use a formal grievance procedure. This will also be quicker than involving external parties. This might be someone from Acas or some other mediator or conciliator. They will try to resolve the problem in an informal maaner by mediating discussions between you and the employee.

  • Try to deal with the problem internally. An informal discussion between you and the employee may clear up any misunderstandings.
  • If it is still not possible to resolve the dispute, the employee may decide to involve an external third party.

Further help

Acas publishes a code of practice on handling flexible working requests and further good practice guidance. Visit www.acas.org.uk/flexibleworking or call 08457 47 47 47.
Visit www.gov.uk/flexible-working for an interactive guide to flexible working rights.

Flexible working is a way of working that suits an employee’s needs, eg having flexible start and finish times, or working from home. Flexible working rules are different in Northern Ireland. All employees have the legal right to request flexible working – not just parents and carers.

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