Hampshire &amp; Isle of Wight


<p>Despite being viewed as a major perk by some employees and essential by many working parents or carers, requests for flexible working can pose a dilemma for employers who feel unable or unwilling to accommodate them. </p>



<p>In some cases, caring responsibilities and changes in personal circumstances mean the ability to work flexibly becomes crucial for employees to balance work and family life. But what if the employer refuses to budge?</p>



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1000" height="667" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Charlotte-Tabytha-Paris-Smith-montage.jpg" alt="Charlotte Farrell Tabytha Cunningham Paris Smith solicitors employment lawyers Hampshire" class="wp-image-31535" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Charlotte-Tabytha-Paris-Smith-montage.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Charlotte-Tabytha-Paris-Smith-montage-800x534.jpg 800w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Charlotte-Tabytha-Paris-Smith-montage-768x512.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Charlotte-Tabytha-Paris-Smith-montage-787x525.jpg 787w" sizes="(max-width: 1000px) 100vw, 1000px" /><figcaption>Charlotte Farrell (left) and Tabytha Cunningham (right), Employment Law Solicitors.</figcaption></figure>



<p>Time to call in the experts. We asked Charlotte Farrell and Tabytha Cunningham, employment lawyers at <a href="https://parissmith.co.uk/" target="_blank" rel="noreferrer noopener">Paris Smith Solicitors</a> for the latest on changes to legislation around flexible working, what to consider when making a request and what to do if you get turned down.</p>



<h2 class="wp-block-heading" id="h-what-s-changing-and-who-can-make-a-request-for-flexible-working">What’s changing – and who can make a request for flexible working?</h2>



<p>Legislation currently going through Parliament will place a higher obligation on employers to consult with employees before rejecting a flexible working request, reduce the timeframe for considering requests from three to two months and make other key changes.</p>



<p>The Government has also confirmed it will be making the right to request flexible working a day one right, rather than employees having to wait until they have been employed for 26 weeks.&nbsp; &nbsp;</p>



<p>In line with the proposed changes, this July 2023 the advice and conciliatory body ACAS published a consultation on an updated Code of Practice for employers on handling requests for flexible working. It’s designed to encourage employers to take a more positive approach to flexible working and ensure that requests are not rejected by default.</p>



<p>Requests are commonly linked with childcare or other caring responsibilities – but they don’t need to be. Any qualifying employee can make a request for any reason. This could be to reduce the number of working days, the number of hours worked each day, requesting condensed hours, for example 35 hours worked over four rather than five days, working from home or hybrid working or moving to a job share arrangement.</p>



<h2 class="wp-block-heading">How do you go about making a flexible working request?</h2>



<p>Currently, employees that have at least 26 weeks’ service with their employer have a legal right to make a flexible working request, known as a statutory request. Employees can only make one statutory request in any twelve-month period. It’s also possible to make informal flexible working requests with no set procedure.</p>



<p>When the proposed changes are introduced, it will be possible to make the request straight away and the number will be increased to two statutory flexible working requests in any twelve-month period.</p>



<p>To qualify as a statutory flexible working request you need to ensure that your request is in writing (email is fine), dated and states that it is a statutory flexible working request. Explain the change that you would like and when you would want this to apply from.</p>



<p>At the moment, you also need to set out what effect your request may have on the business and how these effects could be dealt with. This part of the requirement will be relaxed when the proposed changes are implemented, however, in most cases you will still want to address this to maximise the chance of your request being accepted. You also need to say whether you have made any request previously and, if so, when you made this request.</p>



<h2 class="wp-block-heading">What detail should your request include?</h2>



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1500" height="1001" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min.jpg" alt="Right to request a flexible working request parent childcare" class="wp-image-31536" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min.jpg 1500w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min-800x534.jpg 800w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min-1000x667.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min-768x513.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2023/07/Parent-min-787x525.jpg 787w" sizes="(max-width: 1500px) 100vw, 1500px" /></figure>



<p>If you are making a request in connection with childcare or caring responsibilities or to help you manage your health or a disability, it’s important that you make this clear. Your employer will then need to be mindful that a refusal could be discriminatory.</p>



<p>It’s also helpful to provide specific details of how your request will benefit your wellbeing, enable your childcare arrangements and any detail any specific challenges you face, for example, inability to find childcare to cover certain hours. &nbsp;</p>



<p>Include as much detail as you can in your request about how you feel the request would work. Specifically, how you think your work can be organised within the reduced hours or differing arrangements you’re requesting. If you were previously able to demonstrate you could conduct your work flexibly during the Covid restrictions or can point to examples of other arrangements that have worked successfully, this will definitely help.</p>



<h2 class="wp-block-heading">What else should I consider?</h2>



<p>The company can only refuse a request based on eight specified business grounds. Specifically: the burden of additional costs for the business; an inability to reorganise work amongst existing staff; an inability to recruit additional staff; a detrimental impact on quality; a detrimental impact on performance; a detrimental effect on ability to meet customer demand; insufficient work available for the periods you propose to work and a planned structural change to the employer&#8217;s business.</p>



<p>Consider these potential grounds for refusal to identify what concerns your employer might have and address them up front. For example, if you are asking for a Friday off each week but other team members already don’t work on Fridays, you may want to consider whether suggesting a Monday off would be more likely to be accepted within the existing team dynamic. Equally, if you have key tasks on certain days, or need to be contactable to clients during certain periods, explain how this will work in practice.</p>



<p>Showing flexibility in your application can also assist. If there are several different options that would work for you don’t be afraid to put both options forward, making your first choice clear. It can also be helpful to indicate that you are willing to agree to a trial period, to give you the opportunity to demonstrate how the change would work in practice.</p>



<h2 class="wp-block-heading">What process does your employer have to follow?</h2>



<p>Under the current rules employers have three months to consider your request. When they get the request they should arrange to discuss this with you as soon as possible, consider it carefully and only refuse on the basis of one of the eight specified business grounds. If your request is not accepted, they should also offer the right of appeal. Your employer can also offer a trial period to test the arrangements as an alternative.</p>



<p>Under the proposed changes, this time period will be reduced to two months. Your employer will also be required to consult with you before reaching a decision if they are considering rejecting a request.</p>



<p>The proposed new ACAS Code of Practice proposes that employers in future must accept a flexible working request unless there is a genuine business reason not to. It also proposes that even where a business reason applies, employers should consider any alternative flexible working options that might be available as part of the process.</p>



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1000" height="667" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop.jpg" alt="" class="wp-image-25392" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop-300x200.jpg 300w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop-720x480.jpg 720w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop-768x512.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2022/01/woman-working-laptop-787x525.jpg 787w" sizes="(max-width: 1000px) 100vw, 1000px" /></figure>



<h2 class="wp-block-heading">What are your options if your flexible working request is refused?</h2>



<p>Post-Covid it can be easier to challenge refusals to grant flexible working, as many employees showed that they can work effectively outside the normal 9-5 pattern in the office. If your request is refused you still have several options option to you.</p>



<p>Firstly, you should appeal under your employer’s process. Within your appeal it’s helpful to address the business ground that they have relied on, any specific concerns that your employer has raised to support this and to suggest how these could be addressed. If the arrangements you have requested have already been successfully implemented elsewhere in the business, you should also highlight these.&nbsp;</p>



<p>In future, under the proposed changes. employers will be required under the ACAS Code to set out “such additional information as is reasonable to help explain the decision” when refusing your request. This should assist employees in appealing decisions, giving access to further information about the reason for the refusal.&nbsp;</p>



<p>If you believe your employer failed to follow the correct procedure, for example your manager failed to consider the points you raised or had clearly already made up their mind to refuse the request before you met to discuss it, you should also raise this within the appeal.&nbsp;</p>



<p>If possible, again it can be helpful to offer alternative options to be considered. For example, a slightly altered working pattern that you would be happy with which also addresses the employer’s concerns.</p>



<p>Your appeal should then be considered impartially by another person within the organisation, who should have the power to overturn the original decision.</p>



<h2 class="wp-block-heading">What are the legal ramifications if your request is refused?</h2>



<p>If your request is refused and your employer has failed to follow the correct procedure to consider your request you may have a claim under the flexible working request legislation. These claims are limited to up to two months’ pay in compensation and are limited to specific procedural failings, for example, where the decision was based on incorrect facts or the employer didn’t specify a legal ground for refusing. &nbsp;&nbsp;</p>



<p>Additionally, it’s well established that requiring people to work full time or in traditional patterns can be potential indirect sex discrimination due to the impact it has on those with caring responsibilities, which statistically tends to be women.</p>



<p>If your request is connected to childcare or other caring responsibilities you may therefore also have a claim for indirect sex discrimination if your request is refused. If your request is connected to a disability, your employer may have also failed in their obligations to make reasonable adjustments.</p>



<p>Crucially, you’re also protected from being treated detrimentally or being dismissed because you have made a flexible working request or raised a potential claim.</p>



<p>Once the proposed changes are introduced it should be slightly easier for employees to pursue these claims due to new requirement for consultation, increased information regarding the reasons for rejecting decisions and the obligation for employers to consider alternatives.&nbsp;</p>



<p>Any claim in the Employment Tribunal will need to be started within three months’ less one day of the act of discrimination or failure, so it is important that you take legal advice promptly if you are considering a claim.</p>



<p><em>For specific legal advice relating to flexible working or the surrounding law, contact Charlotte Farrell or Tabytha Cunningham. Email ER@parissmith.co.uk, Tel. 023 8048 2134.</em></p>


Employment: How to ask for flexible working

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