- What is flexible working?
- The law on flexible working
- Flexible working: what is the employer’s responsibility?
- Requesting flexible working
What is flexible working?
Flexible working is when an employee’s working pattern reflects their needs. This could include working from home, or different start and finish times.
Although it is particularly common for parents and carers to request flexible working arrangements, all employees can request flexible working.
What are the different types of flexible working?
There are a number of different forms that flexible working can take.
Flexible working hours
Flexible start and finish times to the working day. There will often be a core time, for example 10am-4pm, with staff being able to start and finish any time up to two hours before or after this time. Hours can be built up to take time off work.
Compressed hours
Working the total number of hours over fewer days. For example, some people will have a 40-hour working week and will do this over four days instead of the usual five days.
Term-time working
A form of part-time working where the employee only works during school terms and is off work during the school holidays.
Homeworking
Working predominantly from home, with some time spent in the office.
Annual hours
Where there are set yearly hours rather than weekly hours, and there is flexibility to work at different periods throughout the year.
Career breaks
A period of unpaid leave that can last from a few months to five years. The best schemes guarantee the right to return to a job at the same level and operate a ‘keep in touch’ policy to ensure continued contact during the career break.
Sabbaticals
A period of paid or unpaid leave, often to undertake education or research.
The law on flexible working
Several areas of employment legislation can be used to help improve members’ work-life balance. The law may be a useful tool to achieve good policies and successful outcomes in individual cases, but the best way of improving policies is to negotiate good agreements to suit your workplace.
The following laws may be relevant:
- The Part-Time Workers Regulations provide for equal treatment of part-time workers.
- The Employment Rights Act 1996 and the Flexible Working Regulations 2014 provide a right to request a change in hours or location.
- The Children and Families Act 2014 gives all employees the statutory right to request a change to their contract terms to work flexibly as long as they have worked for the employer for 26 weeks on the date the application is made. From 30 June 2014, there is no need for an applicant for flexible working to be a carer.
- The Equality Act 2010, which protects against discrimination on the grounds of protected characteristics.
- The Maternity And Parental Leave Regulations, which:
- provide the right to maternity leave and the right to return to the same or similar post after maternity leave
- allow for up to 18 weeks unpaid leave to care for a child up to their 18th birthday.
- provide for time off for dependents. The Employment Rights Act 1999 says you’re allowed a reasonable amount of time off to deal with the emergency, but there’s no set amount of time as it depends on the situation.
- The Health and Safety at Work provisions will be relevant to all employees.
Flexible working: what is the employer’s responsibility?
The employer is under a statutory duty to consider the request and to comply with the legal procedures for doing so. However, if the employer refuses, there is no legal right for the employee to challenge how reasonable this decision is.
An employer can only refuse an application if it considers that one or more of the following grounds apply:
- the burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to reorganise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficient work during the periods the employee proposes to work
- planned structural changes.
Procedures
Once the employee has made the application:
- the employer must consider the request in a reasonable manner
- the employer is under a duty to deal promptly with requests
- a final decision must be given within three months of the application being received
- the three-month limit can be extended by agreement
- the final decision must be given in writing, specifying a reason. The employer is not required to provide a written explanation for the refusal.
Requesting flexible working
All employees have the right to request flexible working from their first date of employment.
Under the legislation, employees can ask for their contracts to be varied to change:
- hours of work
- times or patterns of work
- location of work (to work from home, for example, or work at another site).
Requests can be made for any reason and the employer must give them due consideration.
Once a request to change hours or location is agreed under the provisions, it will be a permanent change, with no obligation on the employer to agree to vary the terms later on.
For example, if an employee goes part-time in order to care for a young child, there will be no right to revert to full-time hours later on, unless this is contractually agreed with the employer.
Making an application to work flexibly
There are strict procedures for making an application to work flexibly. This must be in writing and dated, and state:
- that it is an application under the statutory provisions
- the change applied for
- the proposed date for the change to take effect
- whether a previous application has been made and when
- the impact it would have on the employer
- the employee’s proposal on how such an impact could be dealt with.
The last two points appear to place an unrealistic burden on the employee, as it will be for them to state the expected effect of the change and to propose remedies for the employer. It is unclear how literally tribunals will apply these conditions, but they are likely to put some employees off.
Once an application is made, whether accepted or not, employees cannot make a further application under the legal provisions for 12 months.
Get support as a member
Speak with your representatives:
If you work in an organisation that has local Prospect representatives, you should speak to them about any work-related issues.
Call the member contact centre on 0300 600 1878 or email [email protected]