Flexible Working: Your Questions Answered

As a result of the coronavirus pandemic, the way we work and live has been forever changed. Many people have enjoyed the flexibility of working from home, including avoiding a commute, setting their own hours and taking care of their children.

Employers can expect to see more employees requesting new and flexible working patterns when we ‘return to normal’, so in this article, I will look at some of the most common questions around flexible working.

Who can request flexible working?

Employees with 26 weeks’ continuous service are normally entitled to request flexible working, regardless of whether they work full-time or part-time. However, if an employee has already made a flexible working request, they cannot make another request for 12 months.

Furthermore, workers (that is, anyone who is not an employee) cannot request to work flexibly. For example, agency workers, self-employed contractors, consultants, and company directors will be excluded if they do not have a contract of employment.

In what ways can an employee work flexibly?

The term ‘flexible working’ covers several ways of working. Employees may ask for changes to working hours, their work location (such as working from home), or the times they work.

Is there a process that must be followed to request flexible working?

There is no specific procedure, but employers must consider any request for flexible working in a ‘reasonable manner’. Unless otherwise agreed by the employee, the employer must reach a decision about a flexible working request within three months.

Does an employer have to allow employees to work flexibly?

In short, no – but they must consider any request to work flexibly in a reasonable way. An employer may only refuse a request for flexible working for a specific business reason; these are set out in legislation as:

  • Unacceptable additional costs.
  • An inability to recruit additional staff.
  • A negative impact on quality of work.
  • An inability to reorganise work among existing staff.
  • A negative impact on the ability to meet customer demand.
  • A negative impact on the performance of the employee, the team or the whole business.
  • Insufficient work available to do during the periods the employee proposes to work.
  • Structural changes to the business that have already been planned that would not fit with the employee’s proposal.

Furthermore, recent tribunal decisions have highlighted that it is not unreasonable to put the interests of the business before the interests of an employee when making a decision about a flexible working request.

Can an employer allow some employees to work flexibly but not others?

Each flexible working request must be considered on its own merits, meaning that some requests may be approved, and some denied. You can decline a flexible working request where there is a good business reason for doing so, including that too many employees are working flexibly at the same time. For example, if several employees from one department request to work from home at the same time, there may be no one around to cover certain tasks during business hours.

However, it may be better to discuss such conflicts with employees rather than to refuse the request. For example, suggest different working patterns or taking turns to ensure the business can run smoothly while accommodating flexible working patterns.

To discuss the legislation around flexible working directly with Jane, please call 01483 887766, email info@hartbrown.co.uk or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.  

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Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.