Employees with at least 26 weeks of continuous employment can make a request for flexible working to their employer: this could be (among other things) a request, for example, to start work later, finish later, to work a certain number of days per week from home, or to condense the working week into four days.
If you want to submit a flexible working request to your employer then you should follow certain steps – these are laid out below
- Check whether you eligible to make a flexible working request
- Check what kind of flexible working you can request
- Submit a request for flexible working in writing
- Appeal against any rejection
- Submit a grievance
Check whether you're eligible to make a flexible working request
Only employees with 26 weeks of continuous service (as of the date that the request is made) can make a flexible working request to their employer, and they can only make one official flexible working request per year. Requests cannot be made by agency workers, members of the armed forces, and employee shareholders.
An employee is, for the purposes of the Employment Rights Act 1996 (“ERA 1996”) “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment)”. The right applies to employees on fixed-term contracts, part-time employees, and those who already work under a flexible working pattern.
The employee must have 26 weeks of continuous service as of the date on which they make the flexible working request.
Only one formal flexible working request can be made every 12 months, but that does not stop an employee from submitting informal flexible working requests in the meantime (although the employer does not have to deal with an informal flexible working request under the formal statutory scheme).
Check what kind of flexible working you can request
An eligible employee can request a change to their employment terms if the changes relate to:
- Changing the hours the employee works;
- Changing the times the employee is required to work;
- Changing the place of work (for example, between the employee’s home and any of the employer’s workplaces)
There are many permutations of change that an employee can seek which build on the three changes above, including (among others): requesting to work full-time; requesting to work part-time; compressing the employee’s hours (for example, working 40 hours per week in 4 days as opposed to 5); flexi-time working; working from home exclusively; working part of the time from home; starting early, and finishing lateÂ
Submit a request for flexible working in writing
It is strongly recommended that you submit your request for flexible working in writing to your employer, preferably by email, so you can prove what you requested and when you requested it. You should, in your flexible working request, set out:
- That you are an employee and you have been employed for at least twenty-six weeks (if this is indeed the case);
- What your current working pattern is;
- What change(s) you wish to make to your employment terms and what your proposed working pattern will be;
- What date the proposed working pattern will take effect;Â
- The impact of the new working pattern and how your employer can best accommodate the changes
Appeal against any rejection
Your employer can reject your flexible working request and does not legally have to allow you an appeal against the decision to reject your request. However, the ACAS Code states that you should be allowed to appeal against the decision to reject the flexible working request if you: 1) identify information that was missed or not available when the original decision was made; or 2) believe that your employer’s policy or the ACAS Code were not finished.
If your employer has rejected your flexible working request then you should submit an appeal in writing (preferably by email) outlining the grounds of your appeal. If your employer allows you to appeal against the decision to reject your flexible working request then an appeal meeting should be held.
Submit a grievance
If your employer rejects your appeal and you continue to be unhappy about the way the flexible working request was dealt with then it is normally sensible, tactically, to:
- Submit a formal written grievance complaining about why you are unhappy about the way in which the flexible working request was dealt with; and
- Submit a subject access request (requesting access to your personal data relevant to the flexible working request)
Submitting a grievance could, potentially, persuade your employer to overturn its original decision; equally, it will be useful evidence if the case ever goes to the Employment Tribunal. Submitting a subject access request will potentially unearth useful evidence relevant to how the flexible working request was dealt with (such as, for example, communications between senior management regarding how the flexible working request was processed).
Submitting a grievance can also help to try and improve the possibility of you being able to negotiate a settlement agreement with your employer
About the author: Chris Hadrill is Partner in the employment team at Redmans.
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