Who can ask for it?
Anyone can ask their employer for flexible work arrangements, but the Government has introduced a statutory right in order to encourage applications. Where your employee makes a statutory request, you are obliged to consider it seriously in accordance with a set procedure and may only refuse the request if certain prescribed reasons apply. It also means that your employee has a right of appeal against a refusal of the request by you.
To be eligible to make a statutory flexible working request, your employee must:
- Be an employee
- Have worked for you for at least 26 weeks on the date he/she makes their request
- Not have made another statutory request during the past 12 months
Your employee can only make an application to care for either:
- A child aged 16 or under (or under six in Northern Ireland)
- A disabled child who is under 18, and who is in receipt of disability living allowance
- An adult who requires care
In relation to children, your employee can request flexible working if they have, or expect to have, responsibility for the child’s upbringing and if they are either:
- The mother, father, adopter, guardian, special guardian, foster parent or private foster carer of the child or a person who has been granted a residence order in respect of a child
- Married to or the partner or civil partner of the child's mother, father, adopter, guardian, special guardian, foster parent or private foster carer or of a person who has been granted a residence order in respect of a child
In relation to adults, your employee can request flexible working if they care, or expect to be caring, for either:
- A spouse, partner, civil partner or relative
- Someone who lives at their address
A relative is a mother, father, adopter, adoptee, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step-relatives, adoptive relationships and half-blood relatives are also included.
Under the law you must seriously consider any statutory application your employees make, but you don't have to agree to it if there's a good business reason not to. Your employees have the right to ask for flexible working - not the right to have it.
How must an application be made?
In order for a flexible working application to be valid, it must contain certain information. It must:
- Be dated and in writing
- State that it is being made under the statutory right to make a flexible working request
- Confirm that your employee has, or expects to have, responsibility to care for a child or adult
- Confirm your employee’s relationship with the child or adult in question
- Specify the flexible working arrangement applied for
- Explain what effect, if any, your employee thinks the proposed change may have on your business and how they believe you can deal with any such effect
- State the date when they want the change to start
- State whether they have made any flexible working applications to you before and, if so, when
What you must do
You should acknowledge receipt of your employee's flexible working request.
If you find that the application is incomplete, you should:
- Ask your employee to resubmit it
- Tell them you don't have to consider it until it is resubmitted
If your employee unreasonably refuses to provide you with the information needed, you can treat the application as withdrawn. The employee will not be able to make another application for another 12 months.
Your employee does not have to give proof of the caring relationship. You should make the decision on whether or not to grant a request solely on business grounds.
In addition, your employee does not have to show:
- That the child or adult in question requires any particular level of care
- Why they, rather than anyone else, must provide that care
However, if you think that your employee is abusing the right to request, e.g. that they don't have a qualifying relationship with the child or adult in question, you can ask for evidence. If your employee refuses to co-operate, you may consider invoking your disciplinary procedure in order to investigate your concerns.
In response to a statutory request for flexible working, except where you are able and willing to agree to a request based just on the application itself, you should arrange a meeting with your employee within 28 days of you receiving their application. If it is difficult to arrange a meeting within this period, seek the employee's agreement to extend it. Failure to hold a meeting within the 28 day period or any extension, without the employee's agreement, will be a breach of the procedure.
You should arrange the meeting at an appropriate time and place that is convenient for all.
The meeting
Your employee has the right to be accompanied by a work colleague or certified trade union representative working in your business.
The companion can address the meeting and confer with your employee during it, but may not answer questions on their behalf.
You must pay both your employee and their companion for the time off from their normal working duties to attend the meeting.
If your employee fails to attend the meeting more than once without a reasonable explanation, you can treat their application as withdrawn, which will mean that they will not be able to make a further application for 12 months.
Extending time limits
There may be occasions where you need more time than the formal statutory procedure allows in order to reach your decision.
There are two circumstances where the time limits for giving decisions and raising appeals can be extended.
Through agreement
You might need to extend time limits where, for example, you need more time to consult with other staff or you agree to a trial period to check the suitability of the proposed working arrangement. Any such extensions need to be agreed in writing.
The written record of the agreement must:
- Be dated
- Be sent to the employee
- Specify what period the extension relates to
- Specify the date on which the extension is to end
Through absence
An automatic extension applies where the individual who normally deals with the request is absent from work due to leave or illness. The extension lasts as long as the period of absence. There are no other circumstances where an automatic extension to any period applies.
Making a decision
You must notify your employee of your decision within 14 days of the meeting to discuss their flexible working request.
If you need more time to consider the request, you must agree this with the employee.
If you accept their flexible working request, you must write to them:
- Detailing their new working pattern
- Stating the date on which it will start
- Stating that the arrangement means a permanent change to your employee’s terms and conditions of employment (unless agreed otherwise)
If you decide that you cannot accommodate any kind of flexible working for your employee, you must, in writing:
- State which of the listed business grounds apply as to why you cannot accept their request
- Provide an explanation of why the business reasons apply in the circumstances
- Set out the appeal procedure
You can only reject a flexible working request on set grounds.
These are:
- Planned structural changes
- The burden of additional costs
- A detrimental impact on quality
- The inability to recruit additional staff
- A detrimental impact on performance
- The inability to reorganise work among existing staff
- A detrimental effect on ability to meet customer demand
- Lack of work during the periods your employee proposes to work
In your written refusal of a flexible working request, you must explain why the business ground applies in the circumstances. If an employee understands why a business reason is relevant, they are more likely to accept the outcome and be satisfied that you have considered their application seriously - even if it isn't the outcome they wanted.
You do not have to go into a lot of detail, but you should include the key facts about why the business ground applies. These should be accurate and relevant to the business ground.
If you make a decision to reject an application based on incorrect facts, this would give the employee grounds to make a complaint to an employment tribunal.
If you and/or the employee are not sure that the proposed flexible working pattern will work in practice, you could think about trying a different working arrangement or, alternatively, you could consider a trial period.
Trial periods can potentially happen at two stages before a formal agreement is reached:
- Firstly, if you know that your employee will be applying, then you can agree to a trial period before they submit a formal written flexible working request. If you do this, the formal procedure will still be available to the employee in the future
- Secondly, if the employee makes a formal written application, you could agree to an extension of time for you to make a decision and the trial period could happen before you reach a final agreement. In this case the rest of the formal procedure would still be available to the employee
If you and the employee think that a flexible working arrangement resulting in a permanent change to their contract of employment may not be the best solution, you could consider an informal temporary arrangement.
This may be appropriate where, for example, the employee suddenly becomes the carer of an adult with a terminal illness or they have to care for someone with a fluctuating condition like Parkinson's disease.
You should put any such agreement in writing.
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