Flexible working

Flexible working is any working arrangement that is different from the default or 'normal' arrangement in your workplace or from an employee's previous arrangements. Flexible working includes arrangements like: 

• working from home or otherwise working remotely (ie working from a location other than the normal place of work)

• working part-time

• annualised hours (ie staff having to work a certain number of hours over a year with flexibility about when to work)

• compressed hours (ie working full-time hours over fewer days)

• flexitime (ie flexible working hours apart from certain ‘core’ hours)

• term-time working (ie working a certain number of weeks per year, with any non-working periods being scheduled in advance in regular, planned periods)

• staggered hours (ie having start, finish and break times that are different to those of other workers)

• job-sharing (ie two people doing one job and splitting the hours)

Putting in place a Flexible working policy can help your business abide by the regulations and ensure that your employees understand the process of making and dealing with requests.

Employees do not have an absolute right to work flexibly. However, under the Flexible Working Regulations 2014, employers have a duty to handle requests to work flexibly in a reasonable manner if:

• an employee makes a request for flexible working

• that employee has at least 26 weeks' service, and

• that employee had not made any other flexible working request in the last 12 months

Employers can allow employees without a legal right to make requests for flexible working to make a request.

An employer can refuse a request for flexible working but this must meet one of the eight allowed statutory reasons for refusal. These are:

• the burden of additional costs that will damage the business

• detrimental effect on ability to meet customer demands

• inability to reorganise work among existing staff

• inability to recruit additional staff

• detrimental impact on quality of work

• detrimental impact on the performance of work

• insufficiency of work during the periods the employee proposes to work

• planned structural changes within the business

Special considerations for rejecting a flexible working request

If a woman requests flexible working for childcare reasons, refusing the request may, in some circumstances, amount to sex discrimination. Where a flexible working request is made by a woman for childcare reasons, or in other cases where refusal might constitute indirect discrimination, then, in addition to fitting into one of the eight reasons, the refusal must be justified. Broadly speaking, the refusal will be justified if it is for a good reason and your decision has balanced your reason against the downside of refusal to the employee.

Where a flexible working request is made by an employee to accommodate health problems, you must take particular care to avoid disability discrimination. Especially since flexible working may constitute a reasonable adjustment. Ask a Lawyer to discuss this tricky area.

All flexible working requests are likely to contain sensitive personal data (eg information about health). These must be processed (eg handled) in accordance with your Data protection policy and Employee privacy notice; a statement that describes how you collect, use, retain and disclose personal information.

Other considerations for handling flexible working requests

If you cannot grant the request as originally specified, consider offering a compromise that you can accommodate. This helps show you are being reasonable. 

A trial period can be useful but may also make it hard to say no to a permanent change later. 

Employees must not be dismissed or subjected to a detriment (eg a demotion) for requesting flexible working. If an employee is dismissed in connection with a request for flexible working this will be considered an automatic unfair dismissal. 

After agreeing to flexible working, make sure to properly record the new working arrangements in a written variation to the employee's Employment contract. Consider using a Change to employment terms letter to do this.

If the employee is now working part-time, you will need to make sure that their pay and benefits comply with legal rules about part-time employees. For more information, read Part-time workers.

If employees will work from home, make sure the home workplace complies with health and safety requirements and carry out a risk assessment. For more information, read Employer health and safety responsibilities for staff working from home and First aid obligations for employees working from home.

Check your employers' liability insurance covers employees working remotely and comply with any conditions of cover. Also, ensure that appropriate arrangements are in place to ensure data security and confidentiality of materials kept at home. Consider changes to management systems and other arrangements so that homeworkers remain integrated into and engaged in the business. Consider having a Working from home policy in place, outlining how employees can request to work from home and how such requests will be managed.

If you have any questions about flexible working, Ask a lawyer.

The Employment Relations (Flexible Working) Bill 2022-23, which is currently making its way through Parliament, is set to change the way flexible working functions.

Under the new Government plans the following changes are expected:

• the right to request flexible working will become a day one right (ie employees will be able to request flexible working from their first day of employment) - currently, employees need 26 weeks’ service

• employees will be able to make two requests every 12 months  - currently, employees can make one request every 12 months

• employers must respond to flexible working requests within two months - currently, employers have three months to respond

• employers will be under a duty to discuss alternatives to the request. This means that if an employer wants to reject a flexible working request, they need to discuss alternatives forms of flexible working with the employee

• employees will no longer have to set out how their employer may deal with the effects of their flexible working request

While there is no set date for these changes to come into effect, they will likely take effect in 2023.

For more information, see the Government’s guidance and do not hesitate to Ask a lawyer.