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You 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. This page shows you how to make a flexible working application, and anticipate all the legal grounds on which your employer can refuse your application.
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.”
Your right to apply for flexible working arrangements arises under Section 80F ERA 1996. 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].
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;
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;
If you are not entitled to make a statutory request, you can make a non-statutory request . 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.
Under section 80F(1)(a) ERA 1996 you can make an application to;
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 Homeworking: A Guide for Employers and Employees].
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.
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;
You must put your statutory request in writing including the following information;
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;
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)
The law sets out strict requirements for your Employer who must acknowledge a flexible working application once it has been received. Your Employer;
These requirements are detailed in the ACAS Code of Practice on flexible working requests
Your Employer can only refuse your application on one or more of the specified grounds in section 80G(1)(b) ERA 1996 which are;
The ACAS Code of Practice on flexible working requests 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 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;
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.
You can only bring a flexible working claim in the Employment Tribunal for the following reasons;
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 characteristic. [see What you can do about discrimination at work]
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
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” 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  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  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  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;
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 it would be an automatically unfair dismissal – section 47E (2) ERA 1996.
You will have to prove to the Employment Tribunal that;
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
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.
Make a list of all matters that you need to take into account before submitting your application. Use this list as a guide;
Working Families: Flexible working
Worksmart: Flexible working
Citizens Advice – Flexible working; How to make a request
Working Mums – Top tips on applying for flexible working
Netmums – Flexible working for parents
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