Flexible Working Checklist

This checklist outlines how a business should respond to a flexible working request from an employee. In November 2012, the government announced that it will extend the right to request flexible working to all employees with 26 weeks’ continuous employment. This briefing sets out the current state of affairs, but businesses should be aware that this regime is likely to change significantly within the next year.

Who can make a request?

The current right to request flexible working is available to employees who have been continuously employed by a business for at least 26 weeks and who care for either a child or an adult.

Caring for children

An employee can make a request to care for a child under the age of 17 (or 18 if the child is disabled). The employee must have responsibility for the child’s upbringing and be either:

  • The child’s mother, father, adoptive parent, guardian or foster parent.
  • The spouse, civil partner or partner of the child’s mother, father, adoptive parent, guardian, or foster parent.

Caring for adults 

  • An employee can make a request if they care for, or expect to be caring for, a person aged 18 or over who is in need of care and is one of the following:
    • married to, or the civil partner or partner of the employee;
    • a relative of the employee; or
    • falls into neither of the above categories but lives at the same address as the employee.
  • Patterns of care giving will vary considerably. However, government guidance suggests that care-giving activities are likely to include:
    • help with personal care (for example, dressing or bathing);
    • help with mobility (for example, getting in and out of bed); or
    • giving or supervising medicines.
  • If a business suspects the employee is abusing the right to request, it can request evidence of the employee’s relationship with the person they are caring for before agreeing to the request.

What kind of change can be applied for?

The employee will need to make a written request for flexible working. In doing so, they must set out their proposed pattern of flexible working, the impact they believe it will have on the business and how they believe the business can accommodate it. The employee can request:

  • To change the hours they work.
  • To change the times they work.
  • To work from a different location (for example, by asking to work from home).

The right to request procedure

There is a detailed statutory procedure that a business must follow once it has received a flexible working request. Take legal advice as soon as the business receives a request to ensure that all obligations to consider the request are complied with.

Rejecting or refusing the request

A business may have legitimate reasons for being unable to accommodate a flexible working request. If the business chooses to refuse a request, it must identify one or more of the following grounds as the reason for doing so:

  • It would have a detrimental impact on the quality of the business’ products or services.
  • There is insufficient work available during the times when the employee wants to work.
  • The business is planning structural changes to the organisation of the business.
  • The work cannot be re-organised among existing staff.
  • There would be a detrimental impact on the business’ performance.
  • The business is unable to recruit the additional staff that the employee’s proposal would require.
  • There would be a detrimental impact on the business’ ability to meet customer demand.
  • The burden of additional costs that would be incurred.

The business should give a notice of refusal in writing, dated and stating which of the above grounds apply, and why. It should also give details of the appeal procedure.

Practical guidance for businesses when handling a request

Follow the statutory right to request procedure

  • When a request to work flexibly is received, the first priority for a business is to ensure that all time limits are met. Meetings and deadlines for responses should be diarised and, where appropriate, the HR department should be consulted.
  • If a deadline cannot be met, make sure the employee is kept informed. It may be possible to reschedule a meeting and avoid any liability for a breach of procedure.
  • Managers should be trained on operating the procedure and the business should consider putting a written procedure in place.

Demonstrate serious consideration of the request

  • Consider all the issues raised by the employee as potential effects of the new work pattern and think about ways of mitigating those effects.
  • Consult the employee’s line manager, and where relevant, affected colleagues.

Think about alternatives, rather than only the initial request

Although the initial proposal may be unacceptable to the business for sound commercial reasons, there may be other working patterns that may satisfy the needs of both parties. Alternative ways of meeting the employee’s objectives should be highlighted and considered.

Maintain consistency

  • Make sure that flexible working requests are recorded, and preferably processed, in a way that ensures that decisions are made consistently.
  • Where inconsistent decisions are made, the business should explain the inconsistency. For example, a business may refuse a request on the basis that organisational capacity for flexible working has been reached and granting any further requests would undermine the business.

Consider the business’ policy on dealing with requests from employees not currently eligible under the statutory procedure

  • Although only limited categories of employees are currently entitled to make a flexible working request, as more categories of employees become eligible, it may become more difficult for a business to refuse requests from employees who are not strictly entitled to apply.
  • Businesses who have opted for universal eligibility for flexible working requests report a positive impact on staff motivation, retention and morale.
  • Businesses should be aware that this issue will be addressed when the eligibility criteria are relaxed to enable all employees with 26 weeks’ continuous service to request flexible working. The new flexible working regime is expected to come into force in 2014. 

Explain the decision and the reasons fully and clearly

Although there are no guidelines on the content of a refusal to grant a flexible working request, an employee should always be given an explanation as to why a particular application cannot be accepted.

Do not reject applications on the basis of a technicality

Avoid rejecting a flexible working application on the basis of a technicality, for example, if the application is undated or made before the birth of a child. In these circumstances, the business should inform the employee of the technical fault and advise them to re-submit an emended application. When a valid request is then submitted, it should be considered afresh.

If you would like further information, please contact Simona Hamblet on 01252 367517 or se@wheelerslaw.co.uk at our Farnborough office or Mel McCrum on 01252 367523 or mm@wheelerslaw.co.uk at our Ash Vale office.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.