How to apply for flexible working arrangements

flexible working

Overview

The Government website www.gov.uk describes flexible working as “a way of working that suits your needs e.g. having flexible start and finish times, or working from home. All employees have the legal right to request flexible working – not just parents and carers. This is known as making a statutory application.”

Under Section 80F ERA 1996, you and all your colleagues (both male and female) have a statutory right to ask your Employer for a change to your contractual terms and conditions of employment to allow you to work flexibly. If your application is successful, the changes to your working pattern will be permanent unless you and your Employer agree that the changes should be temporary. Your Employer must seriously consider your request and is only allowed to refuse for reasons laid out in section 80G (1) ERA 1996. Once your application is accepted, your Employer cannot change it unless there is a specific right to review the flexible working arrangements or you agree that the arrangements are time limited within the contract.

The statutory right is the right to make an application to your Employer and to have it properly considered. It is NOT a right to insist that your Employer should accept your request. See  The Right to request Flexible Working

 

Who CAN apply for flexible working?

The Flexible Working Regulations 2014 set out the rules regarding how to make an application for flexible working. To be entitled to apply for flexible working, you must;

  • be an Employee – section 80 F (1)ERA 1996
  • have at least twenty- six weeks of continuous service with your Employer – section 80F(8)(a)(i) ERA 1996 and Regulation 3 Flexible Working Regulations 2014
  • not have made an application for flexible working during the previous twelve months – section 80F (4) ERA 1996

 

Who CANNOT apply for flexible working

The flexible working provisions do not apply to members of the armed forces – sections 191 and 192 ERA 1996.

The right is also not available to agency workers, even if the agency worker is an Employee of the employment agency – sections 80F(8)(a)(ii) and 80F(8)(b) ERA 1996.

There IS a category of agency workers to whom the right is extended under Regulation 2 of the Parental Leave (EU Directive) Regulations 2013. The right to apply for flexible working applies to an agency worker who;

  1. is an Employee – sections 80F (1) and 80F (8) ERA 1996
  2. has been continuously employed for a period of not less than 26 weeks – section 80F(8)(a)(i) ERA 1996 and Regulation 3 Flexible Working Regulations 2014
  3. is returning to work from a period of parental leave – sections 76 and 80F(8)(a)(ii) ERA 1996

If you are not entitled to make a statutory request, you can make a non-statutory request (see below under How to apply for flexible working). Check your employment contract or your workplace policies to see if there is a Flexible working scheme in place. You may be able to apply through the workplace scheme even if you are not entitled to use the statutory scheme.

 

What kind of flexible working pattern is allowed?

Under section 80F(1)(a) ERA 1996 you can make an application to;

  1. change your hours of work, for example to work less hours a week
  2. change the times you are required to work, for example to start at a different time during the day
  3. change your place of work, but only between your own home, and any workplace run by your Employer

The statutory right does not cover any changes to your contractual duties, but otherwise there is no restriction on the way that these changes are made. ACAS says “There are many forms of flexible working. It can describe a place of work, for example homeworking, or a type of contract, such as a temporary contract. Other common variations include: part time working, flexi time, job sharing and shift work.”

The ACAS publication on Flexible working and work-life balance is a useful guide on the different types of flexible working arrangements that are available. See also Homeworking: A Guide for Employers and Employees

 

How to apply for flexible working

There are two ways to apply for flexible working. You can make a formal statutory request under section 80F (2) ERA 1996 and Regulation 4 Flexible Working Regulations 2014 or a non-statutory request. Your Employer may have a non-statutory flexible working scheme in place. You may be able to apply through a workplace scheme even if you are not entitled to use the statutory scheme. Check your employment contract and workplace policies.

 

What you should write in your Non-statutory application

If your Employer has a non-statutory scheme in place, it should tell you how to make your request. If it does, then you should use your Employer’s application form. If not, make sure that your written and dated request includes the following information;

  • say that it is a request for flexible working and outline your personal circumstances that have brought about your request. If you have a G.P letter (or a support letter from another health professional), you should refer to it and include it.
  • specify the change you want to make
  • give the date you want the change to start from
  • explain how the change will impact on your Employer and colleagues, and how you believe this impact can be addressed

 

What you should write in your statutory application

You must put your statutory request in writing including the following information;

  • say that it is a request for flexible working
  • specify the change you want to make
  • give the date you want the change to start from
  • explain how the change will impact on your Employer and colleagues, and how you believe this impact can be addressed
  • state whether you have made a previous application to your Employer, and the date of the previous application
  • the date

There is a Flexible Working Application form available Here

 

The date of your statutory application

The date on which you make your application is very important because it marks the beginning of the “decision period” when time starts running for your Employer to notify you of the decision on your application. The rules about when time starts running are as follows;

  • A flexible working application is taken as made on the day it is received. Time starts running from the day your Employer receives your application – Regulation 5(1) Flexible Working Regulations 2014
  • If you deliver your application by hand, the date starts running from the date you delivered it so make sure you get a receipt. – Regulation 5(2)(c) Flexible Working Regulations 2014
  • If you post your application, the date is the date on which it is delivered, so it would be a good idea to post it recorded or special delivery so that someone signs for it, then you have proof of when it was received – Regulation 5(2)(b) Flexible Working Regulations 2014
  • If you send it by email or fax, the date is the date when it is transmitted. Include a read receipt in the email, but also send a hard copy and make a note on the email that “hard copy follows” – Regulations 5(2)(b) and 5(3) Flexible Working Regulations 2014

 

When must your Employer notify you of the decision?

The law sets out a timetable within which your Employer must notify you of the decision to agree or refuse your request for flexible working. This is called “the decision period”, and your Employer must give you a written decision within this period – section 80G (1) (aa) ERA 1996

The decision period for your application starts on the date that your application is received by your Employer and ends three months from that date, or a longer period as agreed between you and your Employer – section 80G(1C) ERA 1996

Any extension of the decision period beyond three months must be agreed between you and your Employer before the current decision period ends, or after the current decision period has ended (but only if it the extension is agreed within the period of three months following on immediately from the expiry of the current applicable decision period)

 

What your Employer must do

The law sets out strict requirements for your Employer who must acknowledge a flexible working application once it has been received. Your Employer;

  1. must deal with your application in a reasonable manner – section 80G(1)(a) ERA 1996
  2. must notify you of the decision on your application within a period called “the decision period” – section 80G (1) (aa) ERA 1996
  3. can only refuse your application on specified grounds laid out in section 80G(1)(b) ERA 1996

These requirements are detailed in the ACAS Code of Practice 5: Handling in a reasonable manner requests to work flexibly.

 

The grounds on which your Employer can refuse your request

Your Employer can only refuse your application on one or more of the specified grounds in section 80G(1)(b) ERA 1996 which are;

  1. the burden of additional costs
  2. detrimental effect on ability to meet customer demand
  3. inability to re-organise work among existing staff
  4. inability to recruit additional staff
  5. detrimental impact on quality
  6. detrimental impact on performance
  7. insufficiency of work during the periods the Employee proposes to work
  8. planned structural changes

 

ACAS and Flexible Working Applications

The ACAS Code of Practice 5: Handling in a reasonable manner requests to work flexibly is a statutory code which tells your Employer what to do when considering your written request to change your working hours or place of work under Section 80F ERA 1996. Read the ACAS Code of Practice 5 and The right to apply for flexible working before submitting your application. All Codes of Practice issued by ACAS have statutory force under section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). The Code itself is not legally binding and so it does not give a free standing right to bring a claim against an Employer who breaches it, however under section 207 TULRCA 1992, it is admissible evidence before an Employment Tribunal. Section 207A provides that compensation can be adjusted by up to 25% if you or your Employer breach any of the provisions of the Code.

The Code of Practice 5 says;

  • Your Employer should make clear to all employees what information must be included in a written request to work flexibly. This will include the statutory requirements detailed above (What you should write in your statutory application) and any other information your Employer needs so check the Flexible working policy at work. It would be unreasonable if your Employer does not make the information required clear to you from the outset and then refuses your request on the basis of information that you did not know you were required to provide.
  • Your written request must be considered when your Employer receives it. A delay in considering your request would be unreasonable. Check the policy for timelines. In any event, your Employer must respond within 28 days.
  • Your Employer must arrange a meeting with you as soon as possible after receiving your written request unless your Employer intends to simply approve your request. Failing to have the meeting or delaying the meeting would be unreasonable.
  • You have a right to be accompanied to the meeting and any appeals. Your Employer must let you know of your right to be accompanied before the meeting. If your Employer does not inform you of the right or allow you to be accompanied, this would be unreasonable.
  • Your Employer should discuss your request with you in private.
  • Your Employer should consider your request carefully, and take into consideration the benefits of the requested changes for you and the business. These should be weighed up against any possible negative impact on the business.
  • Your Employer must not discriminate unlawfully against you in considering your request.
  • Your Employer must inform you of the decision in writing, as soon as possible.
  • If your Employer accepts your request in its entirety or with modifications, they must discuss how and when the changes should be implemented as soon as possible.

 

Bringing a claim against your Employer in the Employment Tribunal

If your Employer refuses your request you can appeal your Employer’s decision. If there is still a refusal which does not fall within the grounds set out in section 80G (1) ERA 1996, or that you believe to be unreasonable you can make a claim to the Employment Tribunal. The Employment Tribunal must take the relevant provisions of the Code of Practice 5 into account.

The grounds on which you can bring an Employment Tribunal Claim

You can only bring a flexible working claim in the Employment Tribunal for the following reasons;

A dismissal for claiming your right to flexible working provisions is automatically unfairsection 104C ERA 1996.

 

Discrimination

Your Employer’s rejection of your application can also be grounds for a discrimination claim in the Employment Tribunal, if you are able to prove that your Employer rejected your claim because of your protected characteristicSee also What you can do about workplace discrimination

 

Time Limits for bringing your claim

You can bring your claim when your Employer first notifies you in writing of the decision to reject your application. If you were allowed an appeal which was rejected, you can bring your claim after the appeal process is ended.

You can also bring your claim at the end of the decision period where your Employer has not given you a response or an opportunity to appeal – section 80H(3A) ERA 1996.

Where you have agreed with your Employer to extend the decision period, and your Employer has not given you a response or an opportunity to appeal, you can bring a claim at the end of the agreed extension period – section 80(H)(3B) ERA 1996

As in most other Employment Tribunal claims, the time limit is three months beginning with the relevant date described above, and subject to ACAS Early Conciliation, or such further period as the Employment Tribunal considers to be reasonable – section 80H (5) ERA 1996

 

Remedies in the Employment Tribunal

The remedies available to you are laid out in section 80I ERA 1996, and must be reflected in your schedule of loss. The Employment Tribunal cannot order your Employer to allow you to work flexibly as you requested. You need to be aware of this before submitting your claim since the Employment Tribunal cannot give you anything that it is not allowed to give by law. The tribunal can make a declaration that your Employer did not properly deal with your application and/or an order that your Employer should reconsider your application. It can also award you compensation of up to a maximum of 8 weeks’ pay under Regulation 6 Flexible Working Regulations 2014.

 

 Detriment

“Detriment” is a legal term. It means unfair action by an Employer against an Employee during Employment which falls short of an actual dismissal. In Ministry of Defence v Jeremiah [1980] the Court of Appeal considered the meaning of detriment in the context of discrimination. Brightman LJ said;” I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment”. Lord Justice Brandon said; “I do not regard the expression ‘subjecting…  to any other detriment’ as meaning anything more than ‘putting under a disadvantage”.

In Shamoun v Chief Constable RUC [2003] the Court said that the test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. Peake v Automotive Products [1977] held that detriment also includes financial or economic disadvantage.

Under section 47E ERA 1996, you have the right not to be subjected to a detriment by any act, or any deliberate failure to act, by your Employer because you have;

  • made or proposed to make an application for flexible working – section 47E(1)(a) ERA 1996
  • brought proceedings against your Employer under section 80H or alleged that there are circumstances that would constitute a ground for bringing any such proceedings under section 80H (for example where you have submitted a grievance) – section 47E(1)(d) ERA 1996

The right not to be subjected to a detriment does not apply where the detriment is your dismissal. If you are dismissed for asserting your right to request flexible working you should use the laws for automatically unfair dismissalssection 47E (2) ERA 1996

 

Bringing a claim for detriment in the Employment Tribunal

If you suffer a detriment you can bring a claim in the Employment Tribunal under section 48 ERA 1996.

See – Legal tests that apply to detriment claims

You will have to prove to the Employment Tribunal that;

  • you have suffered some detriment
  • the detriment was caused by some act or deliberate failure to act on the part of your Employer, and
  • your Employer’s act or omission was done on one of the prohibited grounds set out above in the grounds for bringing your tribunal claim

Time Limits for bringing a detriment claim

You must bring your claim within three months of the act or failure to act which you are complaining about. If you are complaining about a series of events, your time limit rans from the date of the last event (subject to ACAS Early Conciliation) – sections 48(3)(a) and 48(4A) ERA 1996

The Employment Tribunal has the power to extend the time limit where there is evidence that it was not reasonably practicable for you to file the claim in time (but this is quite rare so just make sure your claim is in time) – section 48(3)(b) ERA 1996

 

Remedies for detriment in the Employment Tribunal

The remedies available to you are laid out in section 49(1) ERA 1996, and must be reflected in your schedule of loss. The Employment Tribunal must make a declaration that you suffered detriment in your employment and may in addition award you compensation which takes account of the infringement you have complained about and any loss which can be attributed to your Employer’s act or failure to act – section 49(2) ERA 1996.

The compensation must include any expenses that you have reasonably incurred and the loss of any benefit which you would have received had it not been for your Employer’s actions – section 49(3) ERA 1996.

The Employment Tribunal can also make an award for injury to feelings.

 

 

Flexible working checklist

Make a list of all matters that you need to take into account before submitting your application. Use this list as a guide;

 

Working Flexibly

  1. Get a copy of your Employer’s flexible working policy.
  2. Read the ACAS Code of Practice 5 and The right to apply for flexible working
  3. If you are thinking of working from home read Homeworking: A Guide for Employers and Employees
  4. Read the ACAS publication on Flexible working and work-life balance to help you decide which flexible working arrangements would suit you.
  5. Do you have a letter of support from your G.P or relevant health professional?
  6. Have you decided on the type of flexible working arrangements you want?
  7. How will it help your work-life balance?
  8. How will it help you cope better?
  9. Will it improve your performance?
  10. Do you really want to make a permanent change to your working day?
  11. If you want a temporary change, how long do you want it to last for?
  12. Will your Employer agree to reviewing the arrangements in a given time frame?

Money considerations

  1. How will a reduced salary affect your pension and retirement plans?
  2. Will you be alright on less money?
  3. Will it affect any workplace benefits that you currently receive? If so, how will you negotiate to retain them?

The business

  1. Will the business benefit from the change?
  2. How will the arrangements impact on customers, clients or service users, and what plans do you have to alleviate this?
  3. Will it cost your Employer more?
  4. Will there be a cost saving or will your Employer have to employ somebody else?
  5. How will it impact on your Team?
  6. How will it impact on office space?
  7. Have you discussed your plans with your colleagues?

 

Resources available

How to use the discrimination questions procedure

How to write a grievance about discrimination at work

How to Write a Grievance About Unauthorised Deductions from Your Wages or Salary

How to Write a Grievance That Gets You What You Want

How to Write a Grievance About Bullying and Harassment at Work

How to Write a Grievance About Changes to Your Employment Contract

How to Write a Grievance About the Behaviour of a Colleague, Manager or Supervisor

How to write a Grievance about discrimination at work

 

Disciplinary action and capability

Discrimination at work

Surviving a workplace suspension

Health and Safety Dismissal

How to fight dismissal on Probation

How to survive a criminal charge, conviction or caution at work

Social Media and Unfair Dismissal

Surviving a disciplinary investigation at work

Surviving Capability and Performance Management

The Disciplinary Hearing

 

ET1: Breach of Contract

ET1: Non-Payment of Holiday Pay on Termination

ET1: Non-Payment of Holiday Pay whilst still employed

DOCUMENTS, FORMS AND LETTER TEMPLATES

 

Best of the web

ACAS: The right to request flexible working

Working Families: Flexible working

Worksmart: Flexible working, your rights

Citizens Advice – Flexible working; How to make a request

Working Mums – Top tips on applying for flexible working

Netmums – Flexible working for parents

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.

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