flexible working

A leading lawyer’s top tips on how to apply for flexible working

More of us are seeking flexible working, but what are your rights, and how can you maximise your chances of getting a deal that works for you?

If you are an employee you can apply to change the terms of your employment contract. This can include a request to change the number of hours you work, the times you work, or the location where you work.  More and more of us are seeking to work flexibly but what exactly are your legal rights and how can you maximise your chances of getting an agreement that works for you?

Who can apply for flexible working?

Historically, the right to apply for flexible working was limited to those with certain caring responsibilities but since 2014 those restrictions have been lifted therefore any employee who has been employed for 26 weeks. Legally you are only entitled to make one application every 12 months although some employers may allow more.

How do you apply?

Some employers will have their own policy and application form so make sure you check with your employer before you apply. The legislation requires that the application be made in writing and…

  • It must state whether you have previously made an application to your employer, and if so when.
  • It must state that it is an application for flexible working.
  • It must specify the change applied for and the date it is proposed it would start.
  • It must explain what effect, if any, you think making the change applied for would have on your employer and how, in your opinion, any such effect might be dealt with.
  • It must be dated.

What must an employer who has received an application do?

The legislation requires your employer to deal with your application in a reasonable manner and notify you of their decision within 3 months of the date of your application unless you and your employer agree otherwise. Although there is no formal requirement for your employer to have a meeting with you, ACAS advise it is good practice. If you are invited to a meeting it is important that you attend. Your employer may only refuse an application on the following specific grounds:

  • The burden of additional costs.
  • It would have a detrimental effect on the ability to meet customer demand.
  • There would be an inability to re-organise work amongst existing staff.
  • Inability to recruit extra staff.
  • There would be a detrimental impact on quality.
  • There would be insufficient work in the periods you proposes to work.
  • There are planned structural changes.

Some employers will give you a right of appeal against their decision but there is no legal requirement to do so.

What is the effect of an application being granted?

The legislation provides that there will be a permanent change to your contract. It is important that you ensure this is confirmed in writing. There is no provision in the legislation for a temporary change to your contract but there is no reason in principle why you couldn’t agree to a time limited change.

How can you maximise your chances of an application being granted

As you can see there are a wide number of reasons why an employer may refuse an application it is therefore important that you are as persuasive as possible in your application.  There are no set rules about what should go in but it is worth thinking about the following things:

  • Have a clear plan about how your proposal will work in practice the more detailed your proposal the more likely it is to be accepted.
  • Anticipate the likely objections/ difficulties which will be raised by your employer.
  • Be ready to compromise.  A wholly unrealistic proposal is unlikely to succeed.
  • Are there any benefits to your proposal – ie would you be available at times when other staff members are not might it lower your employers overheads?
  • Highlight if a refusal of your application would cause you hardship.  Would your employer have to spend money on recruitment and training if you had to leave?
  • Think about how technology can work for you.  In the age of the internet more and more work can be done remotely.
  • If you are making the application because of caring responsibilities ensure your employer knows that they will not be interfering with work. Employers are sometimes suspicious that you will in fact be caring for children when you should be working.
  • Are there any examples of people in your organisation who are already doing the kind of flexible working you are requesting.  Point to the success stories.
  • If your employer is reluctant ask them to consider a trial period.  This will give you an opportunity to demonstrate that it can work.
  • Don’t forget your colleagues.  The difficulty with some applications is that they have a negative impact on those you work with.  Eg if you can’t do weekend working because of childcare commitments are others going to have to work additional weekends? Think about what you can do in return and if appropriate speak to those you work with if you have their support you will have a stronger case.  Speak to your union if you belong to one.

Making the law work for you

If you are unhappy with how your employer deals with your application you can make a complaint to the Employment Tribunal. The limited grounds on which you can do so include:

  • That they have failed in their duty to deal with the application in a reasonable manner.
  • That they have failed to notify you within the 3 month timescale.
  • They have rejected your application for a reason other than one of the permitted reasons listed above.
  • The decision to reject your application was based on incorrect facts.

Any claim must be brought within 3 months.  However the remedies available to a Tribunal are limited. They can order an employer to reconsider an application (but with no guarantee they will make a different decision) and they can order compensation of up to 8 weeks pay (a weeks pay has a legal definition and is subject to a weekly maximum).

Given the limited repercussions for an employer arising out of the flexible working rules it might be thought that there would be little risk to an employer in refusing an application however such a refusal may also amount to indirect sex discrimination under the Equality Act 2010 which is where knowing your rights can be important.

Indirect discrimination arises where an employer has a provision, criterion or practice, usually a particular rule or policy, which appears to be neutral in its application but in fact places a certain group eg. women at a particular disadvantage compared with others.  Women are far more likely to be primary carers for children or relatives and therefore policies or requirements to work in a particular way eg. a requirement for employees to work full time may be harder for women to comply with and therefore indirectly discriminatory.  Indirect discrimination can be justified by an employer but the burden is on them to show that in imposing such a policy they have a legitimate aim and their rule or policy is a proportionate way of achieving that aim.  In a claim of indirect discrimination Tribunals will closely scrutinise an employer’s reasons as to why they have refused and a mere assertion that the application has been refused for one of the reasons under the flexible working legislation will not be enough  If you present a well thought out and reasonable application your employer will have to consider the risk that a refusal will be discriminatory  and may struggle if you have presented a reasonable and well thought out application.

If your application is rejected and you believe it may be indirectly discriminatory you should consider lodging a grievance with your employer.  The Tribunals have strict time limits for claims (3 months) so it is important that you do not delay too long before taking action and you should always consider taking legal advice.

Rebecca Thomas is a barrister and specialist in employment and discrimination law at 42 Bedford Row Chambers, who work closely with Judge Sykes Frixou Solicitors. If you would like Rebecca’s advice or assistance with a flexible working application, please contact Adrian Scotland, a solicitor specialising in employment law on 020 7379 5114.

Please note that this article and the other legal resources published on our site from time to time can only ever amount to brief and generalised commentary on the issues concerned. They do not constitute legal advice and neither we, nor Judge Sykes Frixou Limited  or any other contributor are able to accept liability for any losses arising from the same. If you are affected by sexual discrimination or other forms of workplace mistreatment, you should approach a specialist solicitor directly for advice. It is important to do so quickly as statutory time limits will likely apply.

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