Workplace Guide: Flexible Working Requests

Flexible Working Request (FWR) – Outline

• It is a day one right and applies to all employees;

• Permissible changes are hours, times and location of work; So for example, you might request working from home an extra day or a later start time and finish time.

• The request can be made for any reason;

• The employer can legally refuse for any of the eight specified business-related reasons listed below

• There must be consultation with the employee and requests should be handled reasonably; and

• The whole process must be concluded within two months (unless an extension is agreed), and this should include the appeal, if one is permitted by the employer.

What Flexible Working Changes Can I Request?

You can ask for a permanent change in terms and conditions (a “contract variation”) relating to:

• The hours you are required to work;

• The times you are required to work; and/or

• Where you are required to work.

How do I make a FWR?

Your application must be:

• Be in writing;

• Be dated;

• State that it is an application under the statutory right to request flexible working;

• Specify what change is being applied for, the proposed date of the change;

• State whether the employee has made a previous request; and, if so,

• When that previous application was.

You can find a helpful template here.

Can My Employer Refuse?

An employer can only refuse an application for flexible working where there is a business reason for doing so.

The permitted business reasons under the legislation are:

i. the burden of additional costs

ii. detrimental effect on ability to meet customer demand

iii. inability to re-organise work among existing staff

iv. inability to recruit additional staff

v. detrimental impact on quality

vi. detrimental impact on performance

vii. insufficiency of work during the periods the employee proposes to work

viii. planned structural changes.

The employer should not simply assert that a statutory ground for refusal exists but should provide an adequate explanation to the employee of which ground applies and why it has led to the application being refused.

The Purpose of FWRs and the Process an Employer Should Take

One of the main purposes of the flexible working provisions is to ensure that employers give serious consideration to employees’ flexible working requests. There is no requirement to follow any particular procedure but requests must be dealt within a “reasonable manner”. There is no statutory definition of what “reasonable manner” means, but both the ACAS Code of Practice and the ACAS guide make recommendations. An Employment Tribunal (ET) will have regard to the ACAS Code of Practice in determining whether an employer has behaved reasonably. As noted above, the employer is required to consult with the employee about a request before it is rejected. This is normally in the form of a meeting.

Although there is no statutory obligation to meet with an employee in all cases, we believe the employer should hold a meeting unless the request can simply be approved without discussion. If the employer cannot accept the request, the ACAS Code says there should be a discussion of whether a modified version of the request or alternative options might work instead. Employers are expected to propose compromises where possible rather than simply rejecting a request outright.

Trial periods and Competing Requests

If your employer is unsure whether a flexible working request will work, one available option is to agree to a change on a trial basis. This is usually an agreed fixed period of time during which the new arrangements are in place. In such cases, the usual two-month decision deadline ought to be formally extended so that the trial period can be accommodated.

It is important to be clear that the trial period has a fixed end date, and that the employee will revert to their original working pattern if the trial is not successful. If this is not stated there is a risk that a permanent contractual change will be deemed to have taken place. It is also important to set agreed dates for reviewing the new arrangements, along with clear criteria for assessing whether the trial has been a success.

As always, make sure you get everything in writing and save it somewhere safe, off of your companies systems and devices.

Complaints to the Employment Tribunal (ET)

There are specified circumstances when an employee can lodge a claim with the Employment Tribunal:

• When the employer has failed to deal with the flexible working application in a ‘reasonable manner’;

• When the employer has ‘failed to consult with the employee’ before rejecting the request;

• When the employer has 'failed to notify the employee of the decision on the application within two months (or any agreed extended period);

• When the employer has refused the application for a reason other than the statutory grounds;

• When the employer’s decision to reject the application is based on incorrect facts; and

• When the employer has inappropriately treated the application as withdrawn.

Role of the Tribunal

The ET’s function is to verify whether the employer has acted in a reasonable manner and consulted with the employee, and to examine any disputed facts as to why the business reasons for refusal apply. There is no power for the Tribunal to question the employer’s commercial judgment or to substitute its own judgment for that of the employer. Unless the employee can persuade the ET that the employer’s decision was based on facts that are “incorrect”, it is difficult to go behind the employer’s business case. There is certainly no requirement on the employer to justify its decision on objective Grounds.

A Successful Claim

Where the ET finds a complaint well-founded, it will make a declaration to that effect and has the power to make an order that:

• Requires the employer to reconsider the employee’s application for flexible working; and/or

• Awards compensation of up to eight weeks’ pay, subject to the upper limit on the amount of a week’s pay.

Due to the fact that limited compensation is available for breaches of the flexible working provisions, it is likely that claims will be brought as part of wider claims for discrimination.

Contrasting Flexible Working and Reasonable Adjustments

There is sometimes confusion between flexible working requests and reasonable adjustments. It is important you don’t get the two confused, and that you follow the course of action that best suits you and your own circumstances. If you’re in doubt, you can reach out to one of our reps for guidance. A flexible working request, when permitted, will usually result in a permanent change in your terms of employment.

In contrast, a request for a reasonable adjustment is linked to a disability and involves seeking a change to remove a disadvantage caused by that disability but does not change your contractual terms. A reasonable adjustment is in response to fixing that disadvantage (and may well change a person's location, days or times of work). This is NOT the same as flexible working though, and if you’re making a reasonable adjustment request - do NOT mention flexible working in it as you risk the employer rejecting your request based on business reasons.

Generally speaking, it is easier for an employer to reject a request for Flexible Working (due to business needs which are sometimes hard to prove or disprove). Whereas, if an employer rejects a Reasonable Adjustment this could amount to disability discrimination.

Indirect Discrimination

A significant risk for employers is indirect discrimination when refusing flexible working requests. This is because such applications are usually made by employees with caring responsibilities. Given that this is an issue that disproportionately affects women – especially those returning from maternity leave – this can lead to claims of indirect sex discrimination.

Indirect discrimination occurs when the employer imposes a condition that despite not being intended to treat anyone less favorably, has the practical effect of disadvantaging someone with a particular protected characteristic. When the act or decision does disadvantage an employee with that characteristic, it will amount to indirect discrimination (unless it can be objectively justified).

The required elements for a finding of unlawful indirect discrimination are:

• The application of a provision, criterion or practice (PCP - the condition imposed by an employer which results in less favourable treatment is known as a “PCP”);

• That PCP must disproportionately disadvantage a group of people who share a protected characteristic;

• The PCP does in fact put someone personally at a disadvantage; and

• There is no objective justification for the PCP.

In practice, most female employees who wish to work flexibly in order to care for children have no difficulty getting over the first three of these hurdles and cases often turn on the question of whether the employer’s insistence on full-time working is objectively justified.

Sex discrimination may also form the basis of a claim for women who have caring responsibilities for adults. Relevant statistics show that this is also a burden which disproportionately falls on women. An employer will be in a position to refuse a request from a female employee who wishes to work flexibly if it can objectively justify its practice of requiring full-time working. There have been numerous cases involving women with young children in which employers have sought to justify such a refusal with inconsistent and unpredictable results.

Employers are much more likely to be able to justify the refusal if they have consulted fully with the employee before rejecting the request with a “can do” rather than “cannot do” approach. The employer ought to try to find ways around its concerns before rejecting a request. A blanket policy to refuse flexible working would usually be considered to be unlawfully discriminatory.

Some jobs can be done flexibly merely by reducing hours. Other jobs may require full-time commitment but be capable of job-sharing. One possible justification for refusing a request to work part-time would be an inability to locate a suitable job-share partner.

Following a change to the Equality Act in January 2024, a male employee wanting to work flexibly for caring reasons may also now be able to claim indirect sex discrimination, if he can show that female employees are disadvantaged and he suffers the same disadvantage.