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/ 21 Jun 2021

Flexible Working Application

With more employees considering and applying to make their home working arrangements permanent, at least on a part time basis, we look at the legal right to make a flexible working application.

What is a Flexible Working Application?

As mentioned in a previous article on remote working and hybrid working, unless home/remote working is provided for in the employment contract, the employer and employee will need to agree a contract variation, or the employee make a flexible working application.

An employee with 26 weeks of continuous service has a legal right to make a flexible working request – for any reason.  When submitted in writing by the qualifying employee it must be dealt with reasonably by the employer and the outcome notified to the employee within  3 months.

The request must be in writing and dated:

  • stating whether they have made a previous request in the preceding 12 months;
  • specify the date and proposed change to the working terms and conditions;
  • explain what effect the employee thinks making the change will have on the employer’s business, and how such effects can be dealt with.

Upon receipt of the request,  the employer should:

  • consider the request;
  • meet with the employee to discuss the request if necessary;
  • provide an outcome to the request within 3 months from the date the application was received – or longer if by agreement;
  • deal with the request reasonably.

The employer may refuse the request only for one or more of the 8 reasons provided within the legislation:

  • burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to re-organise work amongst 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;
  • planned structural changes.

The employee can complain to a tribunal if the employer:

  • fails to deal with their application in a reasonable manner;
  • fails to notify them of the decision on their application within the decision period;
  • fails to rely on one of the statutory grounds when refusing their application;
  • bases its decision on incorrect facts; or
  • treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

The scheme continues to be set out in sections 80F to 80I of Employment Rights Act 1996 (as amended) together with the Flexible Working Regulations 2014 (SI 2014/1398) (Flexible Working Regulations).

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