What do you do if you are forced to return to the office? – an employee’s flexible working rights

What is “flexible working”?

Flexible working is not a one size fits all, there are many different types of flexible work arrangements to include working from home/working remotely, hybrid working (working remotely and in the employee’s usual workplace), job sharing, compressed hours (e.g. full time hours over fewer days), part-time roles, flexi-time (the employee choses when to start and finish work with agreed limits), annualised hours (working certain hours over the course of a year), or staggered hours (different start, break and finish times to other workers). In essence, flexible working involves changing how, when or where an employee works.

Why might someone want or need flexible working?

Some examples are:

• An employee may need to be able to balance their work life with other aspects of their life i.e. to fit in/work around their partner’s work arrangements, to accommodate caring commitments – this could be childcare, or caring for another person, or education obligations.
• Flexible working may help improve the wellbeing and health of an employee i.e. compressed hours might mean they can spend more time with their family, or take up a hobby or interest.
• Flexibility could afford an employee the opportunity to explore more/new employment.

Employees’ rights to request flexible working

Under the Employment Rights Act 1996, an employee (Employee – Employment status – Acas) has a statutory right to request flexible working and, as of 6 April 2024, the Employment Relations (Flexible Working) Act 2023 provides that:

• It is a day-one right for an employee to make a request;
• An employee has the right to make two flexible working requests every 12 months; and
• The employer must communicate their decision to the employee within 2 months of the request (longer if agreed by the employee).

How do you make a Flexible Working Request?

To make a request, you must:

• Make the request in writing; and
• State that it is a statutory request for flexible working.

Your request must include:

• the date of the request,
• the change/s (hours, times or place of work) requested by you to the terms and conditions of your employment,
• the date that you would like the change/s to be effective from, and
• if, and when, you have made a previous request for flexible working to your employer.

What must your employer do?

Under the ACAS Statutory Code of Practice on Requests for Flexible Working (Code of Practice on requests for flexible working | Acas), it states that:

• An employer must act reasonably when dealing with every flexible working request, including carefully evaluating how the requested change/s will impact on both the employer and the employee;
• An employer must not discriminate directly or indirectly against the employee in relation to any protected characteristics set out in the Equality Act 2010 (Protected characteristics | EHRC) which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation;
• An employer must accept the employee’s flexible working request unless one or more of the 8 prescribed business reasons apply; and
• An employer must consult their employee before making a final decision, giving consideration to other options that might be available and acceptable alternatives.

Under what reasons can your employer reject your request?

Under Part 8A of the Employment Rights Act 1996 (Employment Rights Act 1996), an employer can only reject an employee’s request if one or more of the following reasons apply:

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

What happens if your employer does reject your request?

If your employer does reject a request, they must confirm this in writing to you, with as much information as possible to explain their reasoning, as well as the appeal process and any timescales that need to be met.  There is no legal right to appeal a flexible working request rejection however an appeal process is considered necessary for a procedure to be considered “reasonable”.

To appeal, you should follow your employer’s flexible working policy, however, if they do not have one or it does not cover appeals, you should raise your appeal in writing, stating:

• why you think your employer’s decision is not right;
• why you think the procedure followed was unreasonable; and
• what you would like to happen next.

Any appeal decision must be made by your employer within 2 months of your initial request being received by them, unless you agree that that timeframe can be extended, so it is important to submit your appeal as soon as practicably possible.

If, after the appeal, your employer’s decision has not changed, you might decide to take no further action, make another request in the future, raise the issue with your employer in the form of a grievance or make a claim in an employment tribunal (you must notify ACAS first before doing this).

What happens if your employer accepts your request?

If your employer agrees to your request fully, there is no reason for them to consult with you.

The agreement should be put to you in writing, or if you have mutually agreed to a different change, with the exact details of the agreed flexible working arrangements and an invitation to discuss the exact details of your agreement as well as how it will look in practice, i.e. when the agreed arrangement will take place from, any arrangement review dates, and any changes to pay or other entitlements.  These details should also be recorded in written form by your employer and then shared with you.

Flexible working changes usually modify the terms of your employment, and these variations need to be put in writing by your employer and shared with you within one month of them being agreed.

Changes in the future?

If, in the future, you feel your arrangement needs to be reviewed again, you can informally approach your employer to discuss any changes, submit another statutory flexible working request, or request a reasonable adjustment, following the same process detailed above.

How can Ellis Jones help?

Requesting flexible working isn’t just about convenience – it’s also about productivity, development, possible career progression, equality and welfare.  Understanding your rights and the correct processes to follow may well enable you to structure a work-life balance that better suits your needs, whether that be when, where or how you work.

If you require assistance in relation to the right to request flexible working, appealing a rejection of a flexible working request or any other employment law or HR matter, please contact us on 01202 525333 or by email at employment@ellisjones.co.uk, and a member of our team will be happy to assist you.