Your rights to flexible working

If you’re an employee and have worked for your employer for at least 26 weeks you have a  right to ask for flexible working. 

Before you apply for flexible working, however, you should be aware of what it involves, its advantages and drawbacks, how to make a request for flexible working and what to expect once you have submitted it. 

This guide sets out to help you with those and other issues concerned with flexible working. 

What is flexible working?

Flexible working is a pattern of work that is planned to suit the individual preferences of the employee. This can include:

Working from home 

This is where you perform some or all of your work duties in your own home. 

Whether or not you can work from home largely depends on the type of job you have, the facilities and space available in your home and whether or not it is possible for you to carry out your work remotely. Generally speaking, the less human contact your work involves the more likely it is to be suitable for doing from home.

Hybrid working

Hybrid working is a variation on working from home, where you can work from home for say two or three days a week and in the office for the remaining days.

Part-time work 

Part-time work means working fewer hours than those which are usual for a full-time worker in your sector.  For example, for an office worker, part-time hours might mean working 3 full days a week, 9-5 pm, instead of 5 full days.

Job sharing 

Job sharing involves sharing the job responsibilities normally associated with one full-time role between two people. This could mean one person working 2 days and the other 3 days.

Condensed hours

Condensed hours are where you work full-time hours but condense them into fewer days. For example, if the full-time hours for your job are 7 hours per day for a five-day week, your condensed hours might be 8 hours 45 minutes for four days, with the fifth normal workday off.

Flexitime

You typically work ‘core hours’ in common with all other employees in your organisation (eg 1000 – 1600 hours, or other variation). However, you generally get to decide when to start and finish your daily shifts. There might also be a daily ‘time band’ of, say 0800 to 2000 hours, within which you have to complete your full quota of hours. 

The Covid-19 pandemic has dramatically changed the way many people are working and will continue to work for the foreseeable future. Flexible working has now become the norm for many companies and employees.

What are the benefits of flexible working?

Flexible working can offer a number of benefits for employees, including:

  • Better work/life balance: You can spend more time at home with family and away from the pressures of a traditional work environment, potentially reducing the effects of stress and burnout.
  • Increased productivity: Having more control over your working hours is believed to be empowering and to make you happier and more productive, so benefiting everyone.
  • Higher retention rates: You are more likely to stay in your employment for longer if you have access to flexible working hours, as this way of working better reflects your individual needs. Lower staff turnover enables better teamwork and retention of key staff. 
  • Saves money: Employees save money by cutting down on commuting, lunch and childcare costs. Employers will have lower overheads per desk related to use of electricity and water, which also has a positive impact on the environment.
  • Improves brand value: Offering flexible working makes the company a more attractive proposition for job seekers. It also increases the opportunity to attract high-quality staff who view this benefit as important.

 

Does flexible working have any drawbacks?

There are also some downsides to flexible working that need to be considered:

 

  • It’s not suitable for all employees

Some people benefit from a tight structure within which to carry out their work, whether that relates to their work environment, or to their working hours. They may prefer not to have to make decisions about when or where they are supposed to work. 

So for them, a 9 to 5 working day at the office means they have a clear divide between work and leisure time and no doubt about when they are meant to be working.

  • Lack of home/work divide

Similarly, if you are working more from home, it can be more difficult for some people to separate professional from personal responsibilities. 

These blurred lines can also cause additional stress for you and anyone who shares your home. They can also affect your employer’s expectation levels about such things as when you are available to deal with work issues.

  • Less social contact: Flexible working – particularly if it involves working from home – can often mean working in isolation from colleagues. The general camaraderie and atmosphere of a traditional work environment is something that some people miss being part of.
  • Communication issues: Flexible working generally requires you to coordinate your communication with colleagues and often to rely heavily on technology, which can sometimes be unreliable. This can add more administrative tasks and take valuable time away from your working day.
  • Fewer benefits: In some cases, flexible working can also mean you work fewer hours, which in turn means you earn less and accrue fewer paid holidays. If you are part of a company pension scheme your contributions will also be lower, with implications for your retirement income. 

 

Who is legally entitled to ask their employer for flexible working?

You have a legal  right to request flexible working if:

  • you are classed as an employee (see below)
  • you have been employed by the company for 26 weeks or longer
  •  you haven’t made a request for flexible working in the past 12 months.

 

Generally speaking, you are classed as an employee if you:

  • are given regular work by the company which you are obliged to do in return for an agreed salary or wage
  • have been employed to carry out the work personally
  • agree to undertake the work in a way determined by your employer (eg working in an agreed location; an agreed number of hours or days of the week)

 

If you don’t fulfil all or any of the above tests, or you are likely to want to make more than one flexible working request per year, you can still apply for flexible working although your employer is not under the same legal constraints to consider or to grant it. (See more below.)

Does your employer have to agree to your request?

Your employer does not have to agree to your request for flexible working. However, if they don’t grant a statutory request from you, they must provide a valid business reason.

For example, an employer can refuse a flexible working request if they believe:

  • it could adversely affect the organisation’s ability to maintain quality of service
  • additional staff would be required that they cannot afford to employ
  • the overall cost is too high for the organisation
  • performance levels could be lowered
  • there isn’t enough work available during the periods you want to work
  • your request doesn’t align with planned changes taking place within the business

 

How do you apply for flexible working?

There are two ways to apply to your employer for flexible working: the first is for you to make what’s called a ‘statutory request’ and the second is by way of a ‘non-statutory’ request.

Making a statutory request for flexible working

If you are legally eligible to apply – see above – you can formally ask for flexible working conditions by making what’s called a ‘statutory request’. A statutory request is one that gives you legal rights under the Flexible Working Regulations 2014 and: 

  • should always be made in writing
  • requires that both your employer and you follow a formal set of procedure and practices  – as outlined below
  • requires your employer to consider your request in a ‘reasonable manner’ 
  • requires a written response by your employer within three months of the date of your request.

See below for further detail on what you should include in your request.

Making a non-statutory request for flexible working

Alternatively, you can make a ‘non-statutory request’, which is a less formal approach but which doesn’t give you quite the same legal rights as a statutory request. 

There is no set procedure to follow with a non-statutory request as it is not made under any laws related to flexible working.

Although you can make a non-statutory request verbally or in writing, we strongly recommend that you do so in writing so there is a clear record of what you are asking for. 

Even if you meet the criteria for a statutory request you may prefer to make a non-statutory request if the change you want to make is temporary or small. If you are eligible, and the changes you want to make are more significant, a statutory request will be the better option.

 

What should you include in your request for flexible working?

The following points apply specifically to a statutory request, but we suggest that you use the same or similar format whether your request is statutory or not, as it will likely help your employer reach their decision more quickly:

  • It must be in writing.
  • The current date should be stated.
  • You should say that it’s a request for flexible working
  • Whether or not you have made a previous request for flexible working.  If you have made a previous request, say when and whether or not it was a statutory or non-statutory request. 
  • When you would like the flexible working to start from.
  • Specify the change – eg the new location, or hours/shifts you would like to work and whether you would like to work them regularly, temporarily, or just for specific times of the year.
  • The ways in which the proposed changes could benefit you (eg higher productivity)  and your organisation (eg cost savings).
  • Your suggestions for dealing with any practical implications of the changes (see below)
  • Why you are making a flexible working request.  Although there is no legal requirement for you to give a reason, it can help your employer to decide whether or not to grant your request. This may be particularly important if, by turning down your request, they may be discriminating against you. (See our guide on Discrimination)

What should happen after you apply for flexible working?

The following outlines the procedure that your employer should adopt when considering your statutory request. It is likely to follow a similar pattern for a non-statutory request (but without the three-month window for a decision).

  • Your employer must deal with your request in a ‘reasonable manner’ – although the legislation doesn’t specify exactly what this means. 
  • Once you have made a request for flexible working your employer should arrange a meeting to discuss the matter in more detail. This will include talking about why you want to change your work pattern and how to deal with any issues arising from the change.
  • If you wish to bring a co-worker or trade union representative to the meeting you can ask your employer before it takes place, although they have a legal right to refuse this request.
  • The employer should make a decision within three months of the request being made. If you do not receive a written response within this time you should follow up with your employer to find out the reason for the delay.
  • If your request for flexible working has been agreed to by your employer, it does not have to be regularly renewed unless or until you want to change it. 
  • Once your request has been agreed upon, your contract of employment should be updated to include the new arrangement. (Your contract cannot be changed again unless both you and your employer agree to any new working conditions.)
  • Your employer may only refuse your request for one of eight reasons set out in the Employment Rights Act. These are quite broad business reasons, so if your employer has a good reason, they can refuse your request.
  • If your employer turns down your request, they should tell you the reason quite clearly.
  • If you consider that their decision is unfair, bias or incorrect for some reason and certainly if it doesn’t provide a valid reason in accordance with the legislation, then you should seek the right to appeal it. (See Appeals by employees)

 

See also Acas code of practice on flexible working requests

 

What practical flexible working issues need attention?

When considering a flexible working request, practical issues that you and your employer need to consider include such matters as:

Equipment questions

If your proposals include working from home, do you have access to sufficient/appropriate equipment and who is responsible for providing and maintaining it?

If you will be working different shift patterns from most colleagues, is technical support available during your working time to resolve equipment/software problems?

Health and Safety Issues

Many health and safety issues relating to flexible working involve individuals working from home. An employer’s responsibilities for their employees’ health and safety when they’re working from home are much the same as for employees who work in the office.  

However, it’s more difficult to implement health and safety practices and procedures in an individual employee’s home than it is in an office, particularly when it comes to carrying out risk assessments and similar. Such requirements may impose a significant burden on your employer which you need to bear in mind when making a flexible working request that involves home working.

When working at home, you as an employee must also take all reasonable steps to protect your own health and safety, as well as the health and safety of members of your household who may also use your working environment.

(See the Health and Safety Executive’s guide on protecting homeworkers for more detail.)

Health and safety can also be an issue if you are working flexible hours which involve you being on work premises outside of normal working hours.  For example, access, security and safety issues when you are on the premises. 

Communications and time management issues

Communications and time management issues which you may take for granted when you’re working regular hours in the office become critical with many forms of flexible working.  

For example, you will need to consider with your employer how to ensure:

  • effective communications between you and your employer 
  • effective communications between you and your co-workers
  • maintenance of work schedules and timeliness

Practices such as keeping records of the work you undertake on a day-to-day basis may also need to be implemented. 

 

Next steps

Have you been rejected for flexible working by your employer and believe you have been treated unfairly or that your employer has discriminated against you in the process?

If so, you may want to seek specialist advice about any legal options that are available to you. Between them Monaco Solicitors’ legal team have decades of experience helping employees who have been in a similar situation, offering guidance and legal insight about their flexible working rights. 

If you would like a no-obligation consultation, contact us via this link, or phone 020 7717 5259. or email: [email protected]

020 7717 5259

See if we can offer you a free consultation

Free consultation