Posted on 28th May 2020

Whether you have been furloughed, or simply working from home, being asked to return to the workplace can be worrying. How can I continue looking after my children, or my elderly relatives? Thankfully, employment legislation provides employees with the right to make a flexible working request, which can help people to balance their work and caring responsibilities.

Who has the right?

The right applies to most employees when they have been employed for a minimum of 26 weeks consecutively. The right does not apply to workers, you have to be employed under a contract of service.

How do I apply?

An application has to be made in writing to your employer setting out the change to your employment contract applied for and the date from which it will take effect. You also need to specify what effect the change will have on the business and how that can be addressed. There is no requirement to set out a personal reason for the request, however.

An employee cannot make two applications in any 12 month period. The date of the application, usually when received by the employer, is therefore important.

What can a request include?

A variety of work patterns can be requested, including, working from home, term-time working, part-time work, compressed hours, job sharing, or flexitime.

The decision

Employers are under a duty to deal with flexible working requests in a ‘reasonable manner’ and they must ensure a decision is not based on ‘incorrect facts’. In essence, they should follow a fair procedure and discuss the application with the employee, consider the request carefully and deal with it promptly.

Requests can only be refused for a valid business reason, which includes additional costs and an inability to reorganise work among existing staff, among others.

Employers are not obliged to provide a right of appeal against if an application is refused but some employers do. Check what the company handbook says.

How long will the decision take?

You should be notified of your employer’s decision, including any appeal, within 3 months of the date the application was made, unless both sides agree to a longer period.

What can I do if my employer fails to deal with the application correctly?

An employee whose flexible working request has been refused can make a complaint to the employment tribunal, usually within 3 months of the decision. If the tribunal finds that the application for flexible working was dealt with unlawfully, it can direct that the application is reconsidered, or order compensation from the employer of up to 8 weeks’ pay.

Employees who are treated badly, or even dismissed as a result of exercising their right to apply for flexible working, may be able to pursue further claims to the employment tribunal, including unfair dismissal.

So what do I do now?

If you want to take some legal advice about your rights, please contact us and we can put you in touch with an employment lawyer.

Further Guidance

Further guidance on flexible working is set out in the following Acas publications:

The Code of Practice on ‘Handling in a reasonable manner requests to work flexibly’ (2014);

The Acas advisory booklet, ‘Flexible working and work-life balance’ (June 2015);

‘The right to request flexible working: an Acas guide’ (2014).

NOTE: Nothing in this blog constitutes legal advice. It summarises the law. If you need advice about your employment rights, you need to seek legal advice from Novate.