Staying on the right side of the law with flexible working requests

Staying on the right side of the law with flexible working requests

July 26, 2017

The verdict is in on flexible working: it makes employees happier, more productive and helps to increase staff retention. Unfortunately, some employers are slow on the uptake. For many business owners, the introduction of flexible working is nothing more than a plan to upset the apple cart. However, flexible working requests are protected by employment law, so it makes sense for business owners to get clued up on how to handle them. 

If you have received a request from an employee for flexible working, it is important you read up on your rights and those of your employee. Flexible working requests can come in many guises, such as working from home, working flexitime, or just the number of hours/ days required to work. While it’s a popular request for working parents, the workers doesn’t need to have caregiving responsibilities in order for the request to be taken seriously.

Employees who have been employed for over 26 consecutive weeks have the right to request flexible working. However, the employer can decide to accept requests from other members of staff. And the decision cannot be based on your fear that the employee will be getting paid to sit on the sofa in their pyjamas. The employee has to show how they plan to meet their work commitments after changing their usual working pattern.

Once a letter has been received from the employee, it is recommended practice to hold a meeting with the employee to understand what they are looking for. This can be an informal chat. The letter of request from the employee must state what effect they believe their flexible working will have on the business, and as an employer, the law states the request must be considered in a reasonable manner. Employees reserve the right to bring a friend or trade union representative to any meeting. This shouldn’t be taken as an aggressive move, but instead, it protects both sides from descending into a “he said, she said” argument.

Following receipt of the letter, the employer has three months to accept, negotiate or reject the request, but a reasonable employer should let the employee know the outcome as soon as possible. By keeping the process informal, it will make it easier to discuss and negotiate the terms without needing to have a solicitor present at every meeting.

If the request is considered detrimental to the business, the employer can reject the request. However, it has to be a business-related decision. Some of the acceptable reasons for rejecting a request are as follows:

  • extra costs that will damage the business
  • the work can’t be reorganised among other staff
  • people can’t be recruited to do the work
  • flexible working will affect quality and performance
  • the business won’t be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

After you have written to the employee with an explanation of your decision, they have the right to appeal the decision. It is best practice to avoid action where third parties are required, such as an employment tribunal or arbitration. However, in some cases it cannot be resolved internally and it is important that both sides hire independent expert legal advice. Equally, if a settlement is agreed, the agreement should be drawn up by settlement agreement solicitors.

If you require any more information on handling flexible working requests, make sure to read through ACAS’ guide or seek advice from employment solicitors. Negotiating flexible working hours can take up valuable business time, and can cost the business money, so it is important for management to be confident they know what the law requires and have guidelines in place for dealing with flexible working requests. As mentioned at the start of this article, there are many benefits to flexible working, so employers needn’t be afraid of such requests.

Small businesses often struggle the most with flexible working as there are fewer people to help balance out the work. Are you the owner of a small business who has managed to make flexible working work for you? Let us know about your experience of flexible working in the comments below!

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