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Flexible Working

To be eligible to make a statutory request for flexible working an individual must:

  • be an employee
  • have 26 weeks continuous service
  • not have made a statutory request to work flexibly in the previous 12 months
  • not be an agency worker

Employees with at least 26 weeks' continuous service have the statutory right to apply for a more flexible pattern of working hours or for more flexible working arrangements. You should deal with an application in a reasonable manner, and can refuse it only on certain specified business grounds (see Standard Operating Procedure for ‘recognised business grounds for refusing a request’). However, employees do not have the automatic right to change to a more flexible working pattern.

No adjustment is required if the contracted hours/days to be worked remain the same. If an arrangement is implemented that affects hours/days worked such as decreasing the regular hours/days worked then an adjustment may be required.

No. From 30th June 2014 it is no longer a statutory requirement for an employee to provide a reason when making a statutory request for flexible working. The right to request flexible working is no longer limited to requests made for the purpose of enabling the employee to care for someone and there is no requirement on the employee to set out his or her reason for making the request.

There is nothing in the legislation to prevent you from asking the employee why he or she is making the flexible working request, and knowing more about the employee's needs may assist you in suggesting a way in which those needs can be met.

However, you should not use the lack of a good reason as a ground for refusing the request.

No, agency workers do not qualify for the statutory right to request flexible working. An agency worker is defined as someone who is supplied by an agent to do work for another ("the principal") under a contract or other arrangement made between the agent and the principal.

An employee who withdraws his or her application for flexible working will not be entitled to make another application under the statutory procedure for a period of 12 months from the date of the original request.

Despite the restriction on making another application within 12 months, an employee may choose to make an informal request. You will not be required to consider it under the statutory procedure, but can decide to consider the request on an informal basis.

You should be aware of the risk of an indirect sex/race/disability etc. discrimination complaint if you ignore a request for flexible working, or reject it without giving it serious thought, even where the request does not come under the statutory procedure.

Yes, you and the employee may decide that a trial period should be implemented in respect of proposed flexible working arrangements. A trial period allows both you and the employee an opportunity to review how the arrangements work in practice, and whether or not they are likely to create any practical difficulties for the department as a whole.

Implementation of the formal change can take up to three months from submission of an employee's statutory request for flexible working, unless you and the employee agree a longer time period. Therefore, before embarking on a trial period, both parties should agree to extend the statutory time limit under the flexible working procedure (unless the trial period will be completed within the three-month decision period).

In addition, you and the employee should document the new working pattern, making clear that it is only a temporary variation to the terms of the employee's contract. The written agreement should state the start and end date of the trial period and the changes that have been agreed. It should record that you reserves the right, at the end of the agreed trial period, to require the employee to revert to his or her previous working arrangement. The document should be signed by both parties.

From 30th June 2014, all employees have the statutory right to make a request to work flexibly, provided that they have at least 26 weeks' continuous employment.

You should also keep in mind your duty to make reasonable adjustments under the Equality Act 2010 when considering a request for flexible working from an employee with a protected characteristic.

It is therefore advisable that you take all requests for flexible working seriously and give them due consideration.

You are required to deal with requests in a reasonable manner. You must notify the employee of your decision within three months of the request, or a longer period if agreed with the employee.

If you agree to a flexible working request, you will be agreeing a change in terms and conditions of employment; you should issue a written statement of the change under s.4 of the Employment Rights Act 1996.

Where the change is an extensive one, you may decide to issue a revised contract to the employee to avoid any confusion about what the new terms are, but there is no legal requirement to do this.

If an employee fails to attend a scheduled meeting to discuss a statutory request for flexible working, you should contact the employee; request an explanation for his or her absence and attempt to reschedule the meeting if appropriate within 7 calendar days of the original date proposed for the meeting.

If an employee does not attend a meeting without notification and does not provide a reasonable explanation within 7 calendar days then you should write to the employee confirming that the application is treated as having been withdrawn.

Where you turn down an application, the employee has the right to appeal against the decision. This must be done in writing, to the appropriate Director or his/her nominated representative setting out the grounds for the appeal, within 14 days of receipt of the written notice of the decision.

You can treat a statutory application for flexible working as having been withdrawn if the employee fails to attend the initial meeting arranged by you to discuss the application and a second meeting arranged for that purpose, without good reason.

You can also treat the application as withdrawn if the employee decides to withdraw the application or if the employee unreasonably refuses to provide you with the required information.

You must notify the employee that you have decided to treat the employee's failure to attend the meetings as a withdrawal of the application.

An employee who has already had a statutory request for flexible working accepted can make a subsequent request to change his or her working pattern again, provided that 12 months have passed since the initial request. Employees can make only one statutory request for flexible working arrangements in any 12-month period.

Once a flexible working request has been agreed it forms a permanent change to the employee's contract, unless agreed otherwise, and cannot be changed without further agreement between you and the employee. Both you and the employee can agree that the arrangements are temporary, or subject to a trial period. In some circumstances, for example where an employee is caring for someone with a terminal illness, you may wish to have only a temporary period of flexible working, which you may be able to accommodate.

In most cases it will be in both parties' interests for the new working arrangement to be permanent. Employees who request flexible working because they have caring responsibilities may have difficulty changing their care arrangements should you wish to revert to the previous working arrangements. Similarly, you may be unable to accommodate the employee's request for a return to a previous working pattern due to budget constraints, because another employee may have been recruited to cover the work, or the work may have been rearranged.

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Page updated: 26/03/2018 09:28:35