What is Flexible Working?

Flexible working is a way of working that suits an employee’s needs.

A statutory flexible request is a right provided by law to employees to request changes to their hours or working patterns. There are a variety of different ways of working flexibly.

Some examples include:

• changing the hours the employee is required to work (for example a request to work fewer hours per week)
• changing the times when the employee is required to work (for example starting later in the day)
• changing where the employee is required to work (but only as between his home and/or any place of business of the employer; no other location is covered) (for example, a request might be made by an office-based employee to work one day a week from home)

There is no restriction on how the changes might come about. For example, it is possible to ask to reduce hours by job sharing, or by becoming part-time.

Different types of request

You can make a request using the statutory scheme or informally with your employer. There are some important differences. For a statutory request you need to have worked for at least 26 weeks for your employer and you can only make one request every 12 months.

Your employer must consider the request seriously and you could have a claim if your employer fails to give a fair reason ( as defined by the law) for refusing your request and if the process takes longer than the 3 month time scale allowed in law. Only employees can make a statutory request, unless you are an agency worker who is returning from parental leave.

You can make an informal request at any time. A potential benefit of an informal request is that it may be quicker and could allow you to try out a different working pattern.

If your employer refuses your informal approach could still potentially have a claim, for example for discrimination, depending on your individual circumstances and the reasons for refusing your request.

Outcome

If you make a statutory request for flexible working and this is accepted by your employer this will usually mean a permanent change to your contract of employment.

You should not end up on worse terms as a result of the change, if for example your hourly pay goes down you could have a potential claim in the Employment Tribunal for discrimination. For further guidance on the claims that you can bring please see below.

How to make a request

You will need to do the following:

• Put your request in writing and date it.
• State that it is a statutory request for flexible working.
• Explain what the changes are and the ways that it may impact on your colleagues. Be practical, think about any possible ground of rejection and address these.
• Give a date when you would like the change to happen.
• If you need the flexibility due to disability or some other protected characteristic (such as race, religion or sex) say so. This is important, as depending on your circumstances you could have a discrimination claim if your employer refuses.
• When you are engaged in negotiations with your employer you should get the help of your Trade Union Rep.
• State whether a previous application has been made by the employee to the employer and, if so, when.

What must employers do?

Employers must deal with requests in a ‘reasonable manner’. Examples of handling requests in a reasonable manner include:

• assessing the advantages and disadvantages of the application
• holding a meeting to discuss the request with the employee
• offering an appeal process

Rejecting an application

An Employer must tell you that they have rejected your application. There is no obligation for this to be in writing though most Employers will set out their reasoning in writing as this demonstrate that they have reasonably considered the request.

Employers can only reject an application for any of the following reasons:

• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to re-organise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work
• planned structural changes

Time scales

The process should be completed within 3 months including any appeal, however you can request an extension of time. If you employer does not deal with your statutory request within 3 months (unless you have agreed an extension) then you could have a claim in the Employment Tribunal.

A tribunal has the power to order your employer to reconsider your request and award compensation for up to 8 weeks pay (capped at £508 per week) in the following circumstances:

• If your employer failed to comply with the procedural rules.
• If your employer failed to give a lawful reason for rejecting your request.
• If your request was rejected on incorrect facts.

You could also have the following potential claims:

• You could have a discrimination claim if your employer refuses your request in circumstances where the refusal could be deemed to be discriminatory.
• If you are treated adversely after making a request, you could have what is known as a detriment claim.
• If you are dismissed for making the request you would have what is known as an ‘automatic unfair dismissal’ claim.

Time limits

There is a strict 3 month less 1 day time limit to bring a claim to the Employment Tribunal with time running from the date of the unlawful act or omission that you wish to complaint about.

If you are unsure about any aspect of employment law then you can refer to our other UnionLine employement rights pages - in particular the one on the issue of Limitation in Employment cases. You may also want to seek specific advice from your GMB Region in the first instance.

The purpose of this advice page is to give an overview of some of the rights that are available to you, however this is no substitute for specific advice which you can obtain from your GMB Trade Union Representative.