Flexible working – how can you maximise your chances of changing your working pattern?

There has been a lot of publicity recently about the changes to the law on flexible working requests. Flexible working requests can cover a very wide range of circumstances and most flexible working arrangements look different for each person.You could request to work different days, different hours, condensed hours, work from home, use hybrid working or start a job share.

The good news for employees is that the legislation currently going through Parliament will make this process easier, fairer and more transparent.

What should you do if you want to request flexible working?

At the moment you need to have been working for your employer for at least 26 weeks’ service to make a statutory flexible working request and you can make one request in each twelve month period. If you don’t meet these criteria you can always make an informal flexible working request but employers can choose how they respond to these and aren’t bound by the specific procedures.

When the proposed changes are introduced, it will be possible to make the request straight away and to make two statutory flexible working requests in any twelve-month period.

To make a statutory flexible working request you must include the following information or the request won’t meet the legal requirements:

• Make your request in writing (email is fine), include the date and state it is a statutory flexible working request
• Explain the changes you are asking for and when you want them to start
• Include details of any previous requests you’ve made

There are also other key pieces of information we’d recommend you include to strengthen your application. These include:

• If you are making the request to look after children or relatives or manage your own health conditions you should make this clear;
• Explain how the request might affect the business and how any potential issues could be avoided (i.e. how work could be covered or emergency issues addressed);
• If you have worked in a similar way before or were given flexibility during covid, refer to it and show how it worked for both you and the business;
• If you can be flexible for important meetings or events (with notice) then explain this;
• If you would be happy to consider different options then include them all and explain which your preferred choice would be;
• Suggest a trial period so you can test out the new arrangements and show it will work; and
• If other people in the business are working in a similar way refer to those arrangements.

As your employer can only refuse a request based on eight specified business grounds, we’d recommend you include details about them in your application. If you can show you have considered the impact on the business and given some thought to how to avoid any adverse consequences for the business and your colleagues, it will be harder for your employer to use these reasons to reject your request.

The business grounds are: the burden of additional costs for the business; an inability to reorganise work amongst existing staff; an inability to recruit additional staff; a detrimental impact on quality; a detrimental impact on performance; a detrimental effect on ability to meet customer demand; insufficient work available for the periods you propose to work and a planned structural change to the employer’s business.

Some examples include:

• Considering whether you can work longer hours on the days you work from home if you are avoiding a commute;
• If you have to complete key tasks on particular days, include those days as your working days or show that those tasks could be moved;
• If you would like a day off during the week try and avoid choosing the same day that other people also have off.

What should my employer do when they receive my request?

Under the new rules, your employer will have two months to:

• Arrange to discuss your request with you as soon as possible;
• Consult with you about your request;
• Consider whether a trial period is suitable;
• Only refuse it on the basis of one of the eight specified business grounds (see above); and
• Offer the right of appeal.

At the moment, your employer has three months to complete the process and employers aren’t legally required to consult with you about the changes, although they should still meet you.

What can I do if my employer refuses my request?

If your request is refused you should appeal under your employer’s process.

In your appeal you should:

• Respond to any of the points your employer has relied on in refusing the request;
• Explain any concerns you have about their decision;
• Refer to any procedural mistakes they have made;
• Refer to any concerns you have that the decision was predetermined; and
• Offer any alternative options they might not have considered, i.e. if they are concerned you have asked for a Monday off and another colleague also has a Monday off, you could offer to change the day to a Friday instead.

You may be asked to attend a meeting to discuss your appeal or they may make a decision based on your appeal letter. The appeal should be considered by someone impartial who has not previously been involved.

What can I do if my appeal is unsuccessful?

There is only a very limited legal right to make a claim if your request isn’t dealt with properly but you may be able to claim up to two months’ pay if they haven’t followed the correct procedure.

Alternatively, you may have potential claims for discrimination depending on the reasons for your request and your employer’s reasons for refusing it.

If you are concerned about how your flexible working request has been handled you should seek legal advice as soon as possible. You only have three months’ less one day to bring a claim for discrimination in the Employment Tribunal, so you need to act quickly if you’re considering complaint about how your employer treats you.