Legal Q&A: Handling flexible working requests

On 6 April 2009, the right to request flexible working was extended to parents of children aged 16 and under, bringing an estimated further 4.5 million employees within the scope of the legislation. More than 10 million staff now have the right to request flexible working, and such requests will need to be handled carefully.

Q Who is eligible to request flexible working?

A Employees with 26 weeks’ service who fulfil one of the ‘caring’ criteria are eligible to request flexible working. In relation to a child aged 16 or under (under 18 if the child is disabled), the request can be made by the child’s mother, father, adoptive parent, guardian, foster parent or special guardian, or by their spouse, civil partner or partner, provided they have responsibility for the child’s upbringing. Requests can also be made by staff who care, or expect to be caring, for an adult spouse, partner, civil partner or near relative, or adult living at their home address. In addition, the employee must not have made another application to work flexibly during the preceding year.

Q What kind of change can be requested?

A An eligible employee may request a change to the hours they work, the times they are required to work or the location in which they work. This covers a wide range of possible flexible working arrangements, including annualised hours, compressed hours, flexi-time, homeworking, job-sharing, shift-working, and term-time working.

Q What procedure does an employer have to follow if a request is received?

A Within 28 days of receiving a valid request, the employer must arrange to meet with the employee to discuss the application. The employee is entitled to be accompanied by a colleague at the meeting. Within 14 days after the meeting, the employer must write to the employee to either agree to a new working pattern and to set a start date, or provide grounds for the rejection of the application and set out the appeal procedure. The employee can appeal within 14 days of the request being rejected. Within 14 days of receiving the appeal notice, the employer must arrange a further meeting. Within 14 days after that meeting, the employer must deliver the appeal decision.

Q What evidence can an employer ask for in support of the request?

A There is no absolute right to request evidence under the legislation. An employer that suspects the right has been abused – for example, because they suspect an employee does not have a genuine qualifying relationship with the child or adult in question – might reasonably request evidence of that relationship, if it is available.

Q On what grounds can an employer refuse a request for flexible working?

A The legislation sets out eight specific grounds on which the employer is permitted to refuse a request for flexible working. These are: 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; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.

Q What action can an employee take if their request is turned down?

A An employee may make a complaint to an employment tribunal only on the very limited grounds that the employer has failed to deal with the request in accordance with the legislation. These are: failure to hold a meeting, notify a decision or offer a right of appeal, that the employer has refused the request for a reason other than one of the prescribed reasons, or that the decision to reject the application was based on factual inaccuracies. However, an employee whose request is turned down may also have a claim for indirect – or even direct – sex discrimination. Following Coleman v Attridge Law, carers may now also be able to bring associative disability or age discrimination claims on the basis that they were discriminated against due to their association with someone who is disabled or elderly.

Q What are the main pitfalls for employers in handling requests?

A The risk of discrimination claims, outlined above. Employers are likely to have an increasing problem with competing requests for flexible working – for example, from an employee returning from maternity leave and another employee caring for a terminally-ill partner who both need to leave work early. If requests are agreed, it is also important to ensure that the employee is not disproportionately disadvantaged in terms of salary and benefits, as this could lead to a part-time employee claim.

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