When it comes to flexible working, there are a few legal basics your business needs to know about. For starters, some of your staff may be legally entitled to make requests for flexible working, and if they do you’ve got specific legal obligations. This means that you’ll need to make sure you’ve got policies and processes in place to deal with requests properly. Our Flexible working toolkit contains everything you need, from a template policy and flexible working acceptance letter, to rejection letters and letters dealing with appeals.
Whether your business reluctantly adapted to flexible working during lockdown, embraced it with open arms or is a veteran of the flexi life, use this employer’s guide to make sure you’re ready to deal with requests made from staff going forward.
Contents
What are the legal basics for flexible working?
Types of flexible working
First things first, when we talk about flexible working it’s easy to just think of working from home, but in actual fact the term covers any type of working arrangement that’s different to a normal working pattern. This includes:
- Part-time working;
- Flexitime;
- Annualised hours;
- Job sharing; and
- Compressed hours.
If you want to find out more about any of these types of working arrangements, our Q&A explains what you need to know.
The legal right to request flexible working
While any of your staff are free to request flexible working from you at any time, some of them may have the formal legal right to request it. Why’s this important? Because if they’ve made a request under the formal legal scheme, you have to deal with it in line with certain legal obligations. On the other hand, there are no set rules about how you should deal with informal requests for flexible working, but make sure you stick to what you’ve said in your HR policies and watch out for the risk of discrimination. Read our Q&A for tips on what to consider when dealing with informal requests.
Dealing with formal flexible working requests
So which staff have got the legal right to request formal flexible working? Employees and apprentices (and in some exceptional circumstances agency workers) with at least 26 weeks’ continuous service with your business do, unless they’ve made a previous formal request to you during the last 12 months (informal requests don’t count).
How to identify a formal flexible working request
Formal flexible working requests can’t just be made any old way. They must be in writing, dated and include specific information, like what flexible arrangement your staff member wants and what effect they think that change might have on your business. For a full rundown of what needs to be included, see our Q&A.
You must let your staff know how they can make formal requests, which you should do in your Flexible working policy. To make it easier for your staff (because if they miss anything out you might not be off the hook!) and to help you distinguish between formal and informal requests, it’s a good idea to make a template letter for making formal requests available to your staff. If you haven’t got one already, use our template.
Responding to flexible working requests
You’ve got three months to respond to a formal flexible working request. This means three months from the date you receive it, and includes any decision-making and appeal processes you go through.
You don’t have to agree to the request, but there are only 8 legal reasons for rejecting it. These include things like the requested arrangement creating an unacceptable additional cost for your business, or having a detrimental impact on the quality of your service. See our Q&A for the complete list of the reasons you can base a rejection on.
You must also make sure you consider any flexible working requests in a reasonable manner – so make sure you follow a reasonable process and set this out in your flexible working policy. We’ve set out some practical tips below.
Practical steps for responding to flexible working requests
Acknowledge and consider the request
It’s a good idea to acknowledge a request in writing as soon as you receive it and arrange a follow-up meeting with your employee. Our flexible working toolkit has a template acknowledgement letter you can use.
Use the meeting to get a better understanding of what your employee is requesting and why – it might be that they’re only looking for a temporary change and not something permanent. After the meeting you should spend time objectively considering the request – remember that there are only 8 permitted grounds for refusing it!
Explain your decision in writing with a flexible working acceptance or rejection letter
Once you’ve made your decision, let your employee know in writing whether you agree to their request or not.
If you accept the request, send a letter to keep a written record of what’s been agreed and what the new arrangement is. This is particularly important because you must confirm any changes that have been made to their employment contract (eg to working hours) as soon as possible (and within one month of the change!). Use our template flexible working acceptance letter to do this.
If you reject the request, it’s a good idea to allow your staff member to appeal your decision if they want to (but you don’t have to). Remember that you’ve only got 3 months to reach a final decision, and this includes any appeals process so make sure you don’t delay! Use our template flexible working rejection of request letter to make sure you follow the correct process. If you’re running an appeal process, we’ve got guidance and documents to help you run this.
If you’re not sure, you could consider trying out the arrangement on a trial basis. Use our template flexible working trial period arrangements letter to do just that and pop a review meeting in the diary to check-in about how it’s working out. Remember that you’ll still need to give your final decision within the 3 month period unless you both agree to an extension!
Employer flexible working tip – be wary of discrimination!
You’re likely to receive flexible working requests from staff with childcare responsibilities, and you’ll have to tread carefully to avoid the risk of discrimination (eg for indirect sex discrimination because women are more likely to be negatively impacted by a refusal). This doesn’t mean that you need to say yes, but make sure you’ve followed a thorough process to seriously consider whether the arrangement would work for your business and that any reason you rely on to refuse it outweighs the potential discriminatory impact it could have.
To find out more about flexible working requests, from your legal obligations to managing arrangements our Q&A has detailed guidance. If you want to jump straight in, our flexible working toolkit will take you step-by-step through the process with all the documents that you’re likely to need, including a flexible working acceptance letter.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.