Employment Law: Top Tips for Dealing with Flexible Working Requests

This summary is based on Judicium’s HR ‘Sofa Session’ from the 6th of December, with our resident expert Jenny Salero, LLB (Hons), L.P.C. This session focused on the proposed changes to legislation, how to deal with multiple flexible working requests, and how to fairly refuse a flexible working request.

Since the pandemic our HR and Employment Law Team have seen a significant increase in flexible working requests are clients are receiving.

But what is flexible working?

Flexible working requests could include changes to working hours, days or patterns of work, alongside job shares or hybrid working arrangements. Although flexible working requests can be difficult to accommodate for mainly roles across the sector, flexible working is here to stay, and we need to adapt.

With this in mind, we have set out a few top tips for managing flexible working.

5 Key Tips for Flexible Working Requests 

1. Try to approach a request from the point of view ‘can this be accommodated?’ rather than ‘how can we refuse this?’

Given the nature of the work within Education, it will not be operationally feasible to accommodate all flexible working requests. However, given current difficulties with recruitment and retention, it is worth considering how you approach all requests.

If requests cannot be accommodated, employees may choose to move on and look elsewhere, which could be far more costly and less beneficial to the organisation as a whole.

2. It is a right to request only.

Under current and future (we’ll get to this shortly) provisions for flexible working, there is no guarantee. It is a right to request only. There is no right to work flexibly. Employers can refuse a request for flexible working provided it is based on one or more of the 8 possible reasons outlined:

1. Burden of additional costs.
2. A detrimental effect of the ability to meet the demand of the school’s students.
3. The inability to reorganise work amongst existing staff.
4. The inability to recruit additional staff.
5. A detrimental impact on quality.
6. A detrimental impact on performance.
7. Insufficiency of work during the period the employee has proposed to work.
8. If there are essentially plan changes in future, e.g., a restructure.

Within a policy we would expect to see an informal procedure before moving on to the formal process.

These can be made by anybody at any time and are often a quick chat with a manager or SLT asking for changes to their work arrangements. There is no limit on the number of informal requests an employee can make.

One benefit of these is if they can easily be accommodated, you don’t need to have formal meetings, discussions, or union involvement. You can simply confirm the agreed changes in writing. The informal request process can be both time-saving and amicable.

If a request would require more discussion or is more difficult to approve, you can recommend the employee submit it via the formal process.

 Formal requests

It should be outlined in your policy, and to make a formal request the employee must have been employed for 26 weeks prior to application.

The employee should set out in writing, either in a letter or application form, depending on your policy, the following:

• What they are asking for including the hours they are currently working, the changes they are proposing and when they want the changes to start.
• The reasons behind the request
• Address the effect the proposed changes might have on the school and suggestions as to how it could be dealt with by the SLT, team members, etc.

Currently, the school then has 3 months from the date of the application to hold meetings with the employee, provide them with an outcome and deal with any appeal if required.

If the employee does not like the outcome, they have the right to appeal. Depending on what your policy states, it is usually heard by a Governor’s panel or Board of Trustees.

3. Don’t be afraid to suggest alternatives!

If an employee has suggested working pattern you do not think you can accommodate, meet with them to discuss this, and explore potential alternatives. You may be able to come to an agreement that suits both parties.

4. Don’t be too hasty!

Flexible working requests have a significant impact on staff, both financially and from a personal perspective. It is important that these requests are given the full attention from managers and senior leaders they deserve.

If you are not sure of your staffing requirements moving forward, you can seek to agree an extension to make a decision regarding the flexible working request. Currently, the decision should be made within three months, unless an extension can be agreed. Usually, most employees would be happy to agree an extension, rather than have their request refused, so do ask the question!

Where you have met with an employee to discuss a request, regardless of whether the outcome for the employee is positive or negative we would always advise that a decision follows in writing. This avoids and accusations from the employee that the outcome of the meeting was pre-determined from the outset.

5. Changes are coming to Flexible Working Requests in 2024

We are currently awaiting secondary legislation that will bring the Employee Relations (Flexible Working) Act 2023 into force.

This legislation will no longer require a ‘business case’ from employees to outline the impact of their request and how this can be ameliorated.

Employees will be able to make two formal flexible working requests within any 12- month period and employers will only have two months, rather than the current three to deal with a request (unless an extension is agreed).

Moving forward, requests will only be able to be refused following ‘consultation.’ It is not clear in the legislation what exactly is meant by this, but it is currently best practice to meet with an employee to discuss a request unless it can be agreed simply. The reality is that this should hopefully not change too much for employers in practice.

This legislation does not make flexible working requests ‘a day one’ right, but this is something that may follow in future.

If you are an Employment Law and HR Advisory client, we will inform you of the changes and revised policies in line with this once the secondary communication has been confirmed.

Key Takeaways 

1.  Make sure you have an accessible Flexible Working Request Policy so that staff and managers know how to handle requests. It is not a legal requirement, but is helpful for all involved. Bear in mind any currently will need to be reviewed in the coming months, when the legislative changes are put into place.

2.  If making a refusal, ensure that any decision is reasoned and explained carefully. This may help to minimise an appeal, but also demonstrates you have complied with the regulations.

3.  Ensure any changes that are approved (whether informally or formally) are confirmed in writing, that salary is adjusted, and payroll makes these updates!

Helpful Info:

ACAS Flexible Working 

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