Flexible working

Flexible working: an introduction

Flexible working is a way of staggering, sharing or breaking up the traditional nine-to-five work routine in order to improve work-life balance. Flexible working can also help an employee maintain a balance if they care for a child or another adult, although there is no requirement to be a care giver to make an application for flexible working.

Flexible working is beneficial to business because it can help employers retain staff and improve staff productivity.

The term flexible working can include working in the following patterns:

• part-time;
• school hours;
• flexi-time;
• home / hybrid working;
• job sharing;
• shift working;
• staggering hours;
• compressing hours (working your hours over a shorter period);
• working hours spread over a year.

The right to ask for flexible working

The law does not give you an automatic right to flexible working, but employers should consider requests on a case-by-case basis.

The right is only a right to make a request, it is not a right to have the request granted.

Both an employee and their employer must follow a standard procedure for making and responding to any requests for flexible working.

Who can request flexible working?

In England, Scotland and Wales, an employee has the right to ask for flexible working from day one of their job.

In Northern Ireland, the right to request flexible working applies after an employee has 26 weeks continuous employment and an employee can only make one statutory request in any 12-month period.

Agency workers do not have a statutory right to make a request for flexible working, except agency workers returning from a period of ordinary parental leave.

The process of requesting flexible working

In England, Scotland and Wales, an employee has the right to make two requests for flexible working within any 12-month period.

An employee cannot make a request for flexible working if another request has already been made and the process has not yet been concluded. An employer must consult with the employee before deciding to reject their request and should provide a response within two months (unless a longer period has been agreed).

A statutory request for flexible working must:

• be in writing
• include the date of the request
• set out the change the employee is requesting and when they would like it to take effect
• state whether the employee has made any previous requests for flexible working and if so, when
• include the fact that it is a statutory request for flexible working

If the employer grants the request a permanent change will be made to the employee’s contract of employment (unless agreed otherwise).

The employer should carefully consider any requests for flexible working and may only refuse a request on one of the statutory grounds and following consultation with the employee.

• the burden of additional costs
• 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 the employee proposes to work
• planned structural changes to the employer’s business

The employer must provide written reasons if it turns down an employee’s request. The ACAS code of practice recommends that an appeal procedure should be available, however this is simply good practice rather than a legal requirement.

Employers must not discriminate in relation to any of the protected characteristics set out in the Equality Act 2010. If an employee seeks a reasonable adjustment for their disability through a request for flexible working, the employer must consider this in line with its legal obligations under the Equality Act 2010.

In Northern Ireland, the process is slightly different and an employee is only permitted to make one request for flexible working every 12 months. An employer then has up to 14 weeks to respond.

A statutory request for flexible working in Northern Ireland must:

• give the date of the request
• state that the application is made under the statutory right to request a flexible working pattern
• give details of the flexible working pattern the employee is applying for, including the date from when they want it to start
• explain what effect the employee believes the new working pattern would have on their employer and how any such effect might be dealt with
• state whether the employee has made a previous application and when they made it

The reasons for refusal are the same as those that apply across the rest of the UK.

Next steps for UNISON representatives

If you need to bargain for better conditions for flexible working in an organisation you could try to negotiate an agreement that includes flexible working for all members.

You could also try to agree with the employer that they will publicise their employees’ rights in terms of flexible working, along with examples of what types of flexible working employees could request.

If, as a rep, you negotiate an agreement that is better than the statutory minimum, please email the Bargaining Support Group to let them know so they can spread best practice.