Flexible working

Flexible working has been with us a long time now but it's an area where many employers still get the basics wrong. Refusing a request to work flexibly can often result in an employee having to leave work so the stakes are high.

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What is flexible working?

Flexible working is any working arrangement that is different from the default or 'normal' arrangement in your workplace or from an employee's previous arrangements. Flexible working includes arrangements like working from home, working part-time, annualised or compressed hours, term-time working and job-sharing.

Putting in place a flexible working policy can help your business abide by the regulations and ensures that your employees understand the process of making and dealing with requests.

What should I do if an employee requests flexible working?

Employees do not have an absolute right to work flexibly but if the requesting employee has at least 26 weeks' service then employers have a duty to handle requests to work flexibly in a reasonable manner, under specific legislation.

An employer can refuse a request for flexible working but this must meet one of the eight allowed statutory reasons for refusal. These are:

  • the burden of additional costs
  • detrimental effect on ability to meet customer demands

  • inability to reorganise work among 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

If a woman requests flexible working for childcare reasons, refusing the request may amount to sex discrimination, in some circumstances.

Where a flexible working request made by a woman for childcare reasons, or in other cases where refusal might constitute indirect discrimination, then, as well as fitting into one of the eight reasons, the refusal must be justified. Broadly speaking, the refusal will be justified if it is for a good reason and your decision has balanced your reason against the downside to the employee of refusal.

Where a flexible working request is made by an employee to accommodate health problems, you must take particular care to avoid disability discrimination. Ask a Lawyer to discuss this tricky area.

All flexible working requests are likely to contain sensitive personal data which must be processed in accordance with your Data protection policy and employee privacy notice; a statement that describes how you collect, use, retain and disclose personal information.

If you cannot grant the request as originally specified, consider offering a compromise that you can accommodate. This helps show you are being reasonable. 

A trial period can be useful but may also make it hard to say no to a permanent change later. 

Employees must not be dismissed or subjected to detriment for requesting flexible working. If an employee is dismissed in connection with a request for flexible working this will be considered to be automatic unfair dismissal

Practical tips on implementing flexible working

Record the new working arrangements properly in a written variation to the employee's contract.

If the employee is now working part-time, you will need to make sure that their pay and benefits comply with legal rules about part-time employees. For more information see our Quick Guide to Part-time Workers.

If employees will work from home, make sure the home workplace complies with health and safety requirements and carry out a risk assessment.

Check your employers’ liability insurance covers employees working from home and comply with any conditions of cover. Also ensure that appropriate arrangements are in place to ensure data security and confidentiality of materials kept at home. Consider changes to management systems and other arrangements so that homeworkers remain integrated into and engaged in the business.

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Create your Flexible working policy

Answer a few questions. We'll take care of the rest