Any employee can request flexible working and in some cases flexible working can be a legal right.
Most flexible working policies allow employees to work either:
- from home;
- part time;
- job sharing;
- term-time working;
- staggered hours;
- annual hours (i.e. working a certain number of hours over the course of the year);
- compressed hours; and
- shift working.
Requirements by Law relating to flexi work
It is a legal entitlement for qualifying parents or carers of adults (such as spouses, civil partners, near relatives and anyone else who lives at the same address) to have the right to flexible working as set out in the Employment Rights Act 1996 and more importantly in the Flexible Working (Eligibility, Complaints, and Remedies) Regulations 2002. Under these regulations the following employees (who must be parents, adopters, guardians, foster parents or married to such a person) are entitled to flexible working:
- those with 26 weeks’ continuous employment;
- who are not members of the armed forces or share fishermen;
- who have not made an application for flexible working in the previous 12 months;
- are applying in order to look after the child or adult; and
- in the case of the child – they have parental responsibility and the child is under 6 (18 if disabled).
Can an employer refuse a flexible work request?
An employer may be able to legitimately deny an employee’s application for flexible working for the following reasons:
- the cost and subsequent impact on the business;
- inability to meet demand;
- inability to reorganise work between employees;
- inability to recruit additional staff;
- flexible working would effect quality and performance;
- lack of work during the proposed working hours; and
- the businesses’ intention to make structural changes to the workforce.
As is apparent from the above, a simple refusal, without consideration, due process and carefully documented comes with significant risks for employers. We can assist on ensuring risks of a subsequent employment law claim are minimised.
Flexible Work Policy
Most employers will have a flexible working policy which will set out the entitlement and procedure for making an application for flexible working, which will usually be along the following lines:
- Employee makes an application in writing to the employer (which must: be dated, state whether a previous application has been made and if so when, specify the change required, when the change is expected to take effect, the impact on the employer and explain the relationship between the employee and the child/adult;
- Employer requests a meeting to discuss the application within 28 days (to which the employee can be accompanied by a colleague or trade union representative);
- Employer makes its decision within a further 14 days and notifies the employee;
- If the request is accepted the employee is provided with a new employment contract;
- If the request is denied the employee should be informed with an explanation of why and of his or her right to appeal.
Appeal against flexible work application refusal
Any appeal meeting should be held within 14 days of the employee notifying the employer of his or her intention to appeal.
Employers should take care when drafting their flexible working policies and to not be slaves to any templates as the implications for not allowing employees to their statutory entitlement could be quite severe (which are explained below).
Employment Law Risks associated with flexible work
An employee can take the matter to an employment tribunal if the dispute relates to:
- The employer’s failure to follow the correct procedure;
- The employee’s appeal is unfairly rejected; and
- The employee is dismissed or unfairly treated as a result of the flexible working application.
- If an employee is dismissed following the flexible working application then he or she will have a claim against the employer for automatic unfair dismissal for trying to assert a statutory right (Horn v Quinn Walker Securities ET 2505740/03) or if they are forced to resign then they can make a claim for constructive dismissal.
- If a woman is returning from maternity leave and asks for flexible working, which is refused, she may be entitled to bring a claim for indirect sex discrimination. In the same way a man could begin proceedings for direct sex discrimination if he could prove that a woman would be treated more fairly.
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