Flexible working – key facts for employers

The freedom to work flexibly has become increasingly important to employees, particularly for those with caring responsibilities or a desire to achieve a healthy work-life balance.

In fact, our employee benefit survey of 2017 found that 91 per cent of employees value flexible working – the second most highly valued benefit from a list of eleven that included health, legal and financial services. Furthermore, our follow-up survey in 2018 revealed that flexible working is the benefit most widely used amongst employees across all age groups.

But what are the rights of employees and the obligations of employers relating to flexible working today? Below are some key facts for employers to take into consideration when including flexible working in their employee benefits programmes.

Who can request to work flexibly and how do they go about it?

Legally, all employees have the right to apply to work flexibly. However, employers are only obliged to consider applications if the employee has worked for them continuously for at least 26 weeks. Furthermore, employees cannot make more than one application in a 12-month period. To make a request for flexible working, the employee will need to put their request in writing and cover the following points:

• state that the application is being made under the statutory right to make a flexible working request;
• specify the flexible working arrangement applied for;
• state the date when they want the change to start;
• explain what effect, if any, the proposed change will have on their employer’s business and how the they believe any effect can be dealt with; and
• state whether any previous statutory flexible working applications have been made and, if so, when.

How should the employer respond to the request?

Initially, the employer should acknowledge receipt of the employee’s request then follow the procedure as set out in the Acas code of practice, which stipulates that:

• all requests must be considered in a reasonable manner.
• all requests, including any appeals, must be decided within 3 months from the date the application is received by the employer. An extension of time can be mutually agreed between the employer and employee.
• refusal of an application must be on one or more of a small number of permitted business grounds (see below).

The Acas code also recommends that a meeting is held with the employee to discuss the application and that the employee is given the right to appeal the employer’s decision.

What are the grounds for refusal?

Whilst it’s generally recognised that flexible working is good for employee morale and productivity, there will be situations where it is not a workable solution for employers. However, legally employers can only refuse a statutory flexible working requests on one or more of the following grounds:

• burden of additional costs
• detrimental effect it would have on the employer’s ability to meet customer demand
• inability to reorganise work amongst existing staff
• inability to recruit additional staff
• detrimental impact it would have on quality
• detrimental impact it would have on performance
• lack of available work during the period when the employee proposes to work
• employers planned structural changes to the business

How can employers mitigate the risks of an appeal or tribunal?

In addition to ensuring they adhere to the Acas code of practice for handling requests for flexible working, employers should consider drafting their own flexible working policy which clearly sets out the company’s rights, as well as its obligations to the employee. It should also include a written appeal process, which it should adhere to should an employee appeal against their decision.

So, as the demand for flexible working grows and it is consistently rated as a highly valuable benefit, it’s important for employers to get to grips with their legal obligations and rights in order to implement a policy that works for both them and their employees.

To learn more about our employee benefit service, email us or call on 020 8731 2424.