Are you facing difficulties with your flexible working request? Do you feel your employer has treated you unfairly or unjustly denied your right to flexible working?
All employees have the right to request flexible working and can make two requests in each 12-month period.
Flexible working can bring advantages to both employees and employers, for instance, an enhanced work-life balance, the ability to fulfil caring responsibilities, and an increase in overall job satisfaction. However, requesting flexible working can be challenging as employers may be unwilling to grant such requests for various reasons which may lack justification.
If you believe your employer has unfairly declined your request, you should seek legal advice.
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What is Flexible Working?
Flexible working refers to a work arrangement that offers employees more control over when, where, and how they work. It is designed to provide a better balance between work and personal life, allowing individuals to adapt their working patterns to suit their needs and obligations outside of work. Flexible working can take various forms, including:
- Working remotely: This refers to the ability to perform some or all of the work away from the usual workplace, typically from home or another suitable location.
- Flexitime: Offering flexibility in determining the start and finish times of work within agreed “core hours,” while still fulfilling the total number of hours specified in the employment contract.
- Compressed hours: Working full-time hours within a shorter timeframe, such as completing the usual workload over fewer days.
- Part-time: Working a reduced number of hours compared to a standard full-time schedule.
- Job sharing: Two employees divide the responsibilities and workload of a single job, sharing the working hours between them.
- Annualised hours: Similar to flexitime, this arrangement involves spreading the total hours worked over a full year, providing flexibility in scheduling working hours throughout different periods.
- Staggered hours: When an individual has different start, finish, and break times compared to other workers, allowing for staggered work schedules.
- Phased retirement: With the removal of fixed retirement age, phased retirement enables individuals to gradually reduce their working hours before reaching full retirement.
Why Might Flexible Working Request Be Refused?
While employees have the right to request flexible working, there are certain grounds on which an employer can refuse the request. Some common reasons could be:
- Inability to meet customer/client demand: If granting the flexible working request would significantly impact the employer’s ability to meet customer or client needs, the request may be refused. This could be due to limited staff availability during certain hours or the need for immediate response or coverage.
- Negative impact on quality or performance: If the employer believes that the proposed flexible working arrangement would negatively affect the quality of work or overall performance, they may refuse the request. This could be the case if the nature of the work requires a consistent presence or if it would disrupt team collaboration or productivity.
- Inability to recruit additional staff or reorganise work among existing staff: If the employer has assessed that redistributing workload or adjusting schedules among existing staff to accommodate the flexible working request would cause undue hardship or disruption, they may refuse the request. This could be due to insufficient resources or workload distribution challenges.
- Additional costs that cannot be absorbed: If the employer determines that accommodating the flexible working arrangement would result in significant additional costs that cannot be reasonably absorbed by the business, they may refuse the request. This could include expenses related to equipment, training, or managing a different work schedule.
- Insufficient work during the periods the employee proposes to work: The employer needs to ensure that there is enough work to be completed and that the employee’s proposed working hours align with the demands of the job and the needs of the organisation. If the employer believes that the employee’s requested hours would result in a lack of productivity or negatively impact the business operations, they may refuse the request.
- Planned structural changes: If the employer has planned to restructure the organisation they may refuse the request. In such situations, the employer may need to maintain a certain level of stability and consistency in the work schedules to facilitate the changes effectively. Granting flexible working arrangements during times of structural changes might disrupt the implementation of those changes or create additional challenges in managing the transition.
It’s important to note that these reasons must be justified and assessed on a case-by-case basis. Employers are expected to consider the request in a reasonable manner and provide a clear explanation for the refusal. Employees have the right to challenge the decision if they believe it is unfair or not based on valid grounds.
What Does “Reasonable Manner” Mean?
“Reasonable manner” refers to the expected conduct and process that an employer should follow when considering a flexible working request. It includes the following elements:
- Meeting and Discussion: An employer is expected to arrange a meeting or suitable alternative to discuss the request with the employee. This meeting should take place in a timely manner and provide an opportunity for both parties to express their views and concerns.
- Careful Consideration: The employer should thoroughly consider the flexible working request, taking into account its feasibility and potential impact on the business operations, staffing, and other relevant factors.
- Communication of Decision: After careful consideration, the employer should communicate their decision to the employee. This can be done through various means, including phone conversation, email, or any agreed-upon method. It is not mandatory for the decision to be communicated in a face-to-face meeting.
- Clear Business Reasons: If the employer decides to reject the flexible working request, they are required to provide clear and valid business reasons for their decision. These reasons should be specific to the case and demonstrate why accommodating the request would not be feasible or suitable based on the business’s needs.
What Can You Do If Your Employer Has Failed To Deal With Your Flexible Working Request?
If your employer mishandles your flexible working request, you may wish to take the following steps:
- Internal Resolution: Discuss your concerns with your employer or HR representative, explaining your dissatisfaction and specific reasons why the request was mishandled. Request a review or reconsideration of the decision.
- Company Grievance Procedure: If the internal discussion doesn’t resolve the issue, follow your company’s grievance procedure. Raise a formal grievance about the mishandling of your flexible working request by submitting a written complaint to the designated person or department.
- Seek Legal Advice: If internal resolution and the grievance procedure don’t provide a satisfactory outcome, consult specialist employment solicitors for legal advice. We can assess your case, guide you on your rights and options, and determine if you have grounds for a legal claim.
- Acas Early Conciliation: Consider engaging in Acas Early Conciliation before legal action. Acas helps resolve employment disputes through facilitated discussions. They aim to find a mutually agreeable solution between you and your employer.
- Employment Tribunal: If all other avenues fail and you believe your employer acted unfairly or unlawfully, file a claim with the Employment Tribunal within specified time limits. An employment solicitor can assist you in preparing your case and representing you in the tribunal if necessary.
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