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Flexible working - your rights
There are obvious benefits of flexible working, especially when balancing work with family life. Everyone is entitled to request flexible working, and many employers are sympathetic and will try to accommodate your needs. For those employers who need persuading to do the right thing, there are a number of approaches and resources you can use, so read on.
What is flexible working?
Flexible working is an agreement between the employer and employee over when, where and how the employee works. Flexible working practices can involve:
- Working different hours, e.g. switching from full-time to part-time work
- Working at different times, e.g. a later start time to allow you to do the school run
- Working compressed hours, e.g. working four longer days rather than five shorter ones
- Working from home
- Job sharing
Who can request flexible working?
To request flexible working you must:
- Have responsibility for bringing up a child under 17 (or under 18 if the child is disabled).
- Be caring for an adult who qualifies for flexible working.
- Be an employee and not an 'employee shareholder' who has signed away various employment rights (you will know if you are one of these)
- Have worked for your employer for at least 26 weeks (although some employers will consider a request regardless, so do check)
- Not have made a flexible working application to that employer within the previous year
If you’re applying for flexible working arrangements with respect to a child, you must be making the request in order to care for them and be any of the following in relation to them:
- Special guardian
- Foster parent or private foster carer of the child
- A person in whose favour a residence order is in force regarding the child
- The spouse, civil partner or cohabitee of any of the above
How do I apply for flexible working?
If you work for a medium to large-sized organisation, your employer may have their own formal procedure, including official guidance and application form. If not, then make your own request in writing. Be clear, specific and detailed in explaining what you would like to change about your work. There are rules about how quickly your employer has to respond, and how long you have to accept or appeal – so it’s important to do everything by the book (tempting though it is to take your boss out for three glasses of wine and then beg).
- Make your request in writing
- Make clear that you’re requesting flexible working
- Specify the change you are asking for
- Give a date when you would like to start the new work pattern
- Explain what effect, if any, you think the change will have on your employer and how they can deal with that effect
- Explain why you’re entitled to make the request (e.g. that you’re the mother of a two-year-old who you need to drop at nursery)
It's worth thinking seriously about how your request could practically be accommodated by your employer. Is there someone else who would like to do your old hours? Are there affordable technologies which will make home working realistic? You are less likely to get turned down if you anticipate objections and suggest solutions.
Issues you want to address might include:
- How you'd communicate with your colleagues if you were working from home
- How you'd give input to meetings on your home days
- How you'd keep your boss/rest of the team up to date with your workload
- Whether you could be flexible about which days/hours you're in the office
A trial period provides a bit of a 'safe' environment to test your proposal. Your employer can withdraw the arrangement if it's not working, and it gives you the opportunity to make sure it works brilliantly so they can't possibly turn it down.
What your employer has to do about your flexible working request
Your employer is obliged to give proper consideration to your request and only reject it for one of a number of prescribed reasons. In considering your request, your employer must:
- Give you an opportunity to meet to discuss your request. The meeting should be offered within 28 days of your request, unless your employer simply agrees to the request on paper, in which case they can just send you a confirmation letter specifying what the change to your working pattern is and when it will begin.
- Hold the meeting at a mutually convenient time, and you may bring a colleague to the meeting to support you. The colleague cannot answer questions on your behalf, so they will need to keep schtum.
- Give you their decision within two weeks of the meeting. If your employer agrees to your request then that’s all good. If they reject your request, they must explain why it is not agreed in writing, setting out their reasons.
Reasons your employer can refuse your flexible working request
- The burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to re-organise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality of work
- Detrimental impact on performance
- Insufficient amount of work to do during the periods the employee proposes to work
- Planned structural changes
Can I appeal if my employer refuses my flexible working request?
Yes. If you’re not satisfied with the reasons given, you have a right to appeal, in writing, within 14 days of the notice of refusal, by way of a dated document setting out grounds for your appeal.
Your employer should hold a meeting with you within 14 days of your appeal (unless the appeal has been permitted without a meeting and your employer informs you of that fact).
If a meeting is held, your employer should tell you the result within 14 days. If it's a ‘no’, your employer must set out their reasons. If it's a ‘yes’, their letter should specify the agreed change and when you will start your new work pattern.
This is another chance to persuade your employer that the arrangement you are proposing can work, so again it's worth really thinking about the practicalities and arguing your case.
Can I take my flexible working request to a tribunal?
If you think your employer has messed up the procedure, based its decision on incorrect facts or treated you badly because you made an application, you may be able to bring a claim to an employment tribunal. But take advice quickly; there are strict time limits for claims of this sort (generally three months from the date of the appeal decision or from the date you were treated badly).
If you really think a refusal to allow you to work flexibly is unfair, you should get some advice, either from a solicitor or from organisations like Acas and Maternity Action. Although the remedies available under the flexible working legislation are relatively limited, it is possible in some cases to claim sex discrimination, or even unfair dismissal if the refusal to allow you to change your work patterns leads to you leaving the job.
Can my employer change my flexible working hours?
Once your flexible working hours have been agreed between you and your employer, your hours cannot be changed without your consent. Your flexible hours agreement should be added to your contract so that there is no room for uncertainty.
The only exception would be if you were to reach a temporary agreement with your employer about flexible working hours, perhaps for a trial period. At the end of this agreed period, your employer could insist that you revert to your previously agreed hours. But if you reach a permanent agreement about your flexible working hours, your employer cannot change the agreement without consulting you.