How do we respond to a flexible working request and what are the potential pitfalls?

An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.

The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.

Once the request has been received an employer must provide their decision within 3 months.  The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed.  However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.

If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.

If an employer is not sure whether the request can be accommodated, they can accept the request but make it conditional upon the employee working a successful trial period.

A request can be rejected but the employer must rely on one of the eight permitted reasons.

Where a request is rejected, the employee should be permitted to right to appeal.

If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent.  To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing.  For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.

The potential difficulties for employers are:

• Not complying with the time-limits;
• Not meeting the client prior to rejecting the request;
• Unreasonably rejecting the request/not having evidence to support the decision;
• Not using one of the eight permitted reasons to decline the request;
• Not allowing an appeal

Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.