What is flexible working?

With more employees looking for flexible working hours, Victoria Templeton of HR Solutions explains how staff can make a flexible working request and how it can also benefit an employer.

What is a flexible working arrangement?

Flexible working has been around since 2003 when the government introduced The Flexible Working Regulations. The regulations made it a statutory right for working parents and carers to request flexible working. Over the years, however, the regulations have evolved and now the right to request flexible working (known as ‘making a statutory application’) has been extended to all employees who:

have at least 26 weeks continuous service
have not previously made a request in the prior 12 months

It’s important to note that while all employees who meet the above criteria have the legal right to request flexible working, it’s for an employer to decide whether the request can be granted in line with business needs.

Examples of flexible working

Flexible working can take many forms and has become more than just the traditional part-time set hours. With businesses changing the way in which they operate to adapt to changing customer needs and coronavirus (COVID-19), as well as improvements to UK infrastructure and improved technology, it means that employees and employers now have many more flexible working options available. These include:

part-time hours
condensed hours
home working
term time working
self-rostering
job share
9-day fortnight
split shifts/hours

How do you make a statutory flexible working request?

Under The Flexible Working Regulations, there are statutory requirements for both employers and employees. Firstly, for an employee’s request to meet to the regulations, it must:

be in writing and be dated
set out the change to the working hours being requested and the date on which they are to come into effect
detail what effect, if any, the employee thinks the change would have on the employer and how it could be dealt with
confirm that the request is a statutory one and that they have not made one in the previous 12 months

If an employee fails to submit a fully completed application, the employer has the right to return the request asking for the missing information. Once a fully completed application form has been submitted, the statutory duty on the employer is to respond reasonably. It’s generally regarded that a request should be considered within 3 months.

Does an employer have to grant a statutory flexible working request?

An employer must seriously consider a flexible working request, however it does have the right to reject it. For the employer, there is a statutory requirement that if declining the request, the reason must fall within one of the eight statutory reasons:

the burden of additional costs
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 for the periods the employee proposes to do
a planned structural change to your business

In cases where it’s possible to approve the request, an employer can do this without any meeting, but the change must be confirmed in writing as it is a variation to the terms and conditions of employment.

In more complex cases, an employer must meet with the employee as soon as possible on receipt of the application to discuss the request in greater detail in a formal flexible working meeting. The employee would have the statutory right to be accompanied to this meeting by either a work colleague or certified trade union representative. The decision from the meeting must be set out in writing:

if the decision is to accept the request, the employee must be provided with a variation to terms and conditions letter
if the decision is to decline the request, the employer must detail the statutory reasons for the rejection - the employee would then have a statutory right to appeal the decision

Under the regulations, the employee can complain to a tribunal if the employer has failed to comply with the statutory regulations; for example, if they failed to comply with procedural rules, if the decision was not made within a reasonable time period, or if the reason for the refusal was not one of the statutory reasons to decline.

How do you make a non-statutory flexible working request?

While The Flexible Working Regulations apply to employees with over 26 weeks continuous service and the employee can only submit one application in a 12-month period, employees can make a non-statutory flexible working request, even if they don’t technically qualify in the regulations. However, if rejected by the employer, they would not be able to make a claim at a tribunal under the regulations.

What are the benefits of flexible working to an employer?

For an employer, flexible working can bring many benefits. At a time when businesses are trying to re-build and respond to the challenges presented by coronavirus (COVID-19), it’s more important than ever to be flexible. Flexible working can:

increase morale and employee engagement
help retain staff
improve productivity
improve the company’s ability to recruit the best talent
allow businesses to change operating hours to help respond to changing needs post-COVID-19
increase diversity and inclusion by enabling businesses to access talent pools that they may not have previously been able to access

About the author

Victoria Templeton is the HR Knowledge Manager at HR Solutions, an outsourced HR services firm offering employment related support and advice to businesses across the UK.

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The Flexible Working Regulations 2014 (Legislation)

Image: Getty Images

Publication date: 9 September 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.