Flexible working – what kind of a right is it?

Posted by: Clare Nicolaou Employment lawyer,  Novalex Solicitors

There is a commonly held misunderstanding about the statutory right to request flexible working.  The right is not an absolute one.  (Small businesses as well as employees sometimes think it is.)

It is not a case of “ask and ye shall receive”; rather, ask and your employer must reasonably consider your request.

The right to request flexible working was originally available only for childcare reasons but since 30 June 2014 employees with at least 26 weeks’ continuous employment have been able to make a request for flexible working for any reason.

The common sense behind this, and sensibly, is that employers who can accommodate flexible working patterns may have a more productive and happier workforce.  It really  doesn’t matter if the flexibility is to allow the employee to play golf every Monday or to write that novel all of us have within us.

The employee triggers the procedure by making a written request.  The employer then has a three-month decision period (which can be extended by agreement) within which to:

  • discuss the request with the employee,
  • give it some proper consideration, and
  • notify the employee of the outcome.

Applications must be dealt with in a reasonable manner and employers may only refuse a request for one of the eight reasons set out in the legislation (The Flexible Working Regulations 2014).

One potential downside for both parties is that once a flexible working application is agreed it is a permanent change to an employee’s contract.

Generally though, in my experience, employees will first broach the subject with their line manager. This is a great opportunity to try and agree a trial period for the arrangement, assuming it is workable, or to work together to try and find a happy medium. It avoids having to go through the statutory procedure and if one or both parties decides it is not working out then there is the option to revert to the original working pattern, or try an alternative.

An ACAS booklet guiding handling requests is here: Booklet

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