Flexible working
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1. Overview
Flexible working is a way of working that suits an employee’s needs, for example having flexible start and finish times, or working from home.
Flexible working rules are different in Northern Ireland.
All employees have the legal right to request flexible working. Employees can request a change to:
- the number of hours they work
- when they start or finish work
- the days they work
- where they work
This is known as ‘making a statutory application’.
Employees can make a request for flexible working from their first day in a job.
What employers must do
Employers must deal with requests in a ‘reasonable manner’.
Examples of handling requests in a reasonable manner include:
- assessing the advantages and disadvantages of the application
- discussing possible alternatives to the request
- offering an appeal process
Read the Advisory, Conciliation and Arbitration Service (Acas) code of practice on flexible working requests.
If an employer does not handle a request in a reasonable manner, the employee can take them to an employment tribunal.
An employer can refuse an application if they have a good business reason for doing so.
2. Types of flexible working
There are different ways of working flexibly.
Job sharing
Two people do one job and split the hours.
Remote working and working from home
Working from anywhere other than the employee’s usual workplace. It can include working from home.
Hybrid working
A combination of working remotely and working in the employee’s usual workplace.
Part time
Working less than full-time hours (usually by working fewer days).
Compressed hours
Working full-time hours but over fewer days - for example a 9-day fortnight (an employee has a day off every other week and works longer hours on the other days)
Flexitime
The employee chooses when to start and end work (within agreed limits) but works certain ‘core hours’, for example 10am to 4pm every day.
Annualised hours
The employee has to work a certain number of hours over the year but they have some flexibility about when they work. There are sometimes ‘core hours’ which the employee regularly works each week, and they work the rest of their hours flexibly or when there’s extra demand at work.
Staggered hours
The employee has different start, finish and break times from other workers.
Phased retirement
Default retirement age has been phased out and older workers can choose when they want to retire. This means they can reduce their hours and work part time.
3. Applying for flexible working
Employees can apply for flexible working from their first day in a job. This is known as ‘making a statutory application.’
The basic steps are:
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The employee writes to the employer.
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The employer discusses the employee’s request with them and makes a decision on it within 2 months - or longer if agreed with the employee.
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If the employer agrees to the request, they must change the terms and conditions in the employee’s contract.
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If the employer disagrees, they must tell the employee giving the business reasons for the refusal. The employee may be able to complain to an employment tribunal.
The employer must discuss the employee’s request with them before refusing their application.
Employees can make 2 applications for flexible working in any 12-month period.
Writing to the employer
An employee should email or write a letter to their employer.
Employers may ask employees to use a standard form to make an application.
What the email or letter must include
The application must include:
- the date of the request
- a statement that this is a statutory request for flexible working
- details of how the employee wants to work flexibly and when they want to start
- a statement saying if and when they’ve made a previous application - include the date of the previous request
Withdrawing an application
Employees should tell their employer in writing if they want to withdraw their application.
The employer can treat an application as withdrawn if the employee misses 2 meetings to discuss an application or appeal without good reason, for example sickness.
The employer must tell the employee they are treating the request as withdrawn.
4. After the application
Employers must consider flexible working requests in a ‘reasonable manner’.
They must make a decision within 2 months of the request (or longer if agreed with the employee).
Read the Advisory, Conciliation and Arbitration Service (Acas) code of practice on flexible working requests.
Agreeing the application
The employer should write to the employee with:
- a statement of the agreed changes
- a start date for flexible working
They should also change the employee’s contract to include the new terms and conditions.
This should be done as soon as possible but no later than 28 days after the request was approved.
Refusing the application
The employer must tell the employee that they’ve refused the application.
Before refusing it, they must have discussed the employee’s request with them.
Reasons for refusing
Employers can refuse an application for any of the following reasons:
- extra costs that will damage the business
- the work cannot be reorganised among other staff
- people cannot be recruited to do the work
- flexible working will affect quality
- flexible working will affect performance
- the business will not be able to meet customer demand
- there’s a lack of work to do during the proposed working times
- the business is planning changes to the workforce
5. Appeals
Employees no longer have a statutory right to an appeal but may still be able to appeal. Employees should check with their employer if they offer an appeals process.
How to appeal
The employee must follow the company’s procedures for appealing.
The employee or employer should follow the company’s procedures for solving a workplace dispute if an application that has been refused causes problems.
Going to an employment tribunal
Employees can complain to an employment tribunal if the employer:
- did not handle the request in a ‘reasonable manner’
- wrongly treated the employee’s application as withdrawn
- dismissed or treated an employee poorly because of their flexible working request, for example refused a promotion or pay rise
- refused an application based on incorrect facts
Employees cannot complain to a tribunal just because their flexible working request was refused.
An employee should complain to the tribunal within 3 months of:
- hearing their employer’s decision on their application or appeal
- hearing their request was treated as withdrawn
- the date the employer should have responded to their request (but failed to do so)
If an employer or employee is unsure of their rights, they should get legal advice.