A practical guide to flexible working rights for small businesses

The statutory right to request flexible working is available to all employees who complete 26 weeks of continuous employment.

Whilst flexible working is certainly becoming a more common feature in the workplace, it could stand to become even more significant in 2019 as discussions continue around whether employers will be required to state whether positions can be worked flexibly in job advertisements.

In the meantime, here’s what every small business owner needs to know about flexible working rights, and how to handle flexible working requests from staff so that you don’t end up in front of an Employment Tribunal;

Do you need a flexible working policy?

As an employer, you should consider introducing a policy for handling flexible working requests, as you may be faced with numerous requests over the course of running your business.

Creating a flexible working policy will ensure all requests are handled consistently, with the same requirements applying to all staff. It will also promote transparency and encourage both the employer and the staff to keep to the timeframes specified.

Owners of small businesses may choose not to have an official policy in their workplace. Nonetheless, they should still ensure that all employees know the procedure involved in submitting a flexible working request.

All staff should be aware of what should be included in any application for flexible working and to whom it should be submitted. This may be included in the contract of employment or communicated to all employees at the beginning of their employment.

Alternatively, the procedure of requesting flexible working can be part of a wider equality policy, as a minimal number of policies may be more convenient for smaller businesses.

Different forms of flexible working

Flexible working can take different forms as it can incorporate changes to working hours, working times and place of work.

Some employees may wish to work a reduced number of hours, others may prefer a later start or an earlier finish, while others may request both. Working from home requests can also be made through a flexible working request.

A request to work flexibly must be made in writing and include the following:

  • Date of the application
  • The proposed changes and a proposed commencement date
  • What effect the employee thinks the change will have on the business and how they think this can be dealt with
  • A statement that they are making a statutory request under section 80F of Employment Rights Act 1996
  • Dates of any previous flexible working applications which have been made by the employee.

Although not a legal requirement, it can be useful for you to know if the application is being made in relation to a reasonable adjustment relating to a disability and so employees should be made aware to provide this information when making a request.

A statutory Code of Practice governs the flexible working procedure in workplaces. You should ensure you stick to this Code of Practice which can be downloaded from ACAS here.

There is also a handy sample template for a Flexible Working Policy that you can also download on the same page.

How to handle a flexible working request

When you receive a flexible working request it should be considered and dealt with in a timely manner, as the decision and appeal of each request should be completed within three months of the date it was received.

When handling a flexible working proposal, you should discuss it with the employee. Ideally, a face to face meeting should take place but if this is not possible, a telephone discussion would suffice. Again, it would be ideal if the employee were permitted to be accompanied during the meeting but this is not a statutory requirement.

Speaking to the employee about the request may help you uncover further information about the situation and how to best resolve it, e.g. if the employee is seeking a permanent change through flexible working or a temporary change where an informal agreement may be more appropriate.

If the employee fails to attend a meeting (either initial or appeal) and its rearrangement without sufficient reason, you may consider this conduct as withdrawal of their request and you must inform the employee that this is the case.

Discussing flexible working with an employee

The discussion should focus the proposed working pattern and how it might be accommodated in practice. If the exact requested times cannot be accommodated, you can use this meeting to discuss any alternative arrangements which can be made and if possible reach an agreement.

After this initial meeting, you must provide a written response soon after the meeting, stating your decision. Remember that you must not discriminate against any employees because of any protected characteristics they may have.

When deciding the outcome of a flexible working request, you may only refuse the application if one of the following statutory grounds applies:

  1. The burden of additional costs,
  2. Detrimental effect on ability to meet customer demand,
  3. Inability to re-organise work among existing staff,
  4. Inability to recruit additional staff,
  5. Detrimental impact on quality,
  6. Detrimental impact on performance,
  7. Insufficiency of work during the periods the employee proposes to work, and
  8. Planned structural changes.

If the decision is to refuse the request, you must identify which of the above grounds for refusal apply and explain how they apply.

Employees should be allowed to appeal a decision to refuse their request and they can use the appeal to provide more information that had not been available previously. You should notify the employee of their rights to appeal and provide details of the appeal procedure.

In the event of multiple flexible working requests…

If you receive a number of flexible working requests from various employees at the same time, to ensure they are handled fairly it may be appropriate to consider them in the order in which they are received.

If this is the case, remember that if you consider and approve the first request, then the business needs have changed and this should be taken into account when considering the subsequent request.

If you are unable to approve all the requests, you may consider seeking agreement from the employees to elect which one to approve through random selection. Employees should be aware from the beginning that this method may be used as a last resort.

In small businesses, it is often the case that only a limited number of employees can benefit from flexible hours. In these circumstances it may be an idea to ask employees already on flexible working to voluntarily return to their original hours or agree an alternative arrangement in order to allow for new flexible working requests to be approved.

It is important to keep in mind employees have the right to make a claim to the Employment Tribunal in relation to flexible working requests. Hence, handling such requests should be done fairly and all employees should be treated equally and not discriminated against.

This guide has been written exclusively for ByteStart by Peter Done, Managing Director of Peninsula Business Services – the UK’s leading specialist Employment Law, HR and Health & Safety service.

Last updated: 19th February, 2021

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