Flexible working: Knowing your rights in the workplace

We all strive to maintain a work-life balance in order to juggle our responsibilities, outside interests and work commitments. You don’t have to be a parent or a carer to want a work-life balance. Recently we held an event with Remziye Ozcan and Deborah Casale, Slater & Gordon to discuss this very subject and they have helpfully provided the following advice.

What is flexible working?

Flexible working can take many forms such as job sharing, shift work, flexitime, part-time working and working from home.

Who has the right to request flexible working?

From 30 June 2014, all employees are entitled to request flexible working for any reason as long as they are eligible.

You are eligible to make an application if:

• You have been employed for 26 weeks.

• You are an employee.

•You make only one request in any 12-month period.

• If you are disabled and your request amounts to a ‘reasonable adjustment’, you should say so in your application. It is important to note that discrimination may occur if your employer fails to make reasonable adjustments in or around the workplace.

How do I make a request?

When you make a request for flexible working your application must:

  • Be in writing;
  • Be dated;
  • State that it’s an application made under the statutory procedure;
  • Specify the change you are seeking and when you wish the change to take effect;
  • Explain what effect, if any, you think the change would have on your employer and how any such effect could be dealt with; and
  • State whether you have previously made an application and, if so, when.

What does my employer have to do?

When considering your request for flexible working, your employer must:

  • Deal with it in a ‘reasonable manner’;
  • Notify you of its decision within 3 months of the date that the request is made; and
  • Give you reasons for refusal if your request is refused.

What does a ‘reasonable manner’ mean? The ACAS Code has recommended that this will include discussing your request with you, allowing you to be accompanied to a meeting and considering the request carefully. Failure to do any of the above steps might be deemed unreasonable and could give rise to a potential claim, so you should bear this in mind.

What happens if my request is approved?

If your request is successful, your employer must issue a written statement of changes to the terms and conditions of your employment within one month of the changes taking effect.

This will mean a permanent change to your terms and conditions of employment so it is important that you consider this.

Can my employer refuse my request?

Your employer can refuse your request for eight prescribed reasons such as the burden of costs, detrimental effect on ability to meet customer demands, an inability to reorganise work amongst staff, an inability to recruit additional staff, detrimental impact on quality and/or performance, insufficient work during the periods the employee proposes to work or planned structural changes.

If you find yourself in this unfortunate situation, the ACAS Code recommends that you should be allowed to appeal the decision.

What remedies are available to me if my employer refuses?

Claims under the flexible working statutory scheme

If your request is refused, you may bring a claim on one or more of the following grounds: (1) your employer failed to deal with your application in a reasonable manner, (2) your employer failed to notify you of its decision within the decision period, (3) your employer rejected your application for a reason other than one of the eight statutory grounds, (4) your employer’s decision to reject the application was based on incorrect facts, or (5) Your employer treated the application as withdrawn when it was not entitled to.

  • You can bring a complaint to the Employment Tribunal within 3 months less one day of the refusal (subject to ACAS Early Conciliation);
  • The tribunal can order your employer to reconsider its decision, or order compensation which is limited to eight weeks pay. In these circumstances, one week’s pay is currently limited to a maximum of £525, which means you could obtain a maximum award of £4,200.

Indirect Sex Discrimination

It may be possible to prove that a refusal to allow a request for part time or other form of flexible working is indirectly discriminatory on grounds of sex.

Indirect sex discrimination against a woman occurs for example where a provision, criterion or practice is applied equally but:

  • It puts women as a group at a particular disadvantage when compared with men;
  • It puts her at that disadvantage; and,
  • If it cannot be justified, it will be unlawful.

Again, you have three months less one day (subject to ACAS Early Conciliation) to bring this claim.

It is generally accepted that more women than men are likely to have childcare responsibilities. Therefore, an employer will have to justify their actions for refusing by providing good business reasons for it. Unfortunately, the refusal of a request made by a man will be more difficult to challenge in these circumstances. 

A huge advantage of bringing this type of claim is that your potential compensation is unlimited.

Disability Discrimination and other claims

You may also have a claim for disability discrimination, if the changes you requested would have amounted to a reasonable adjustment under disability discrimination laws. You should take advice about this promptly should this be the case, as the 3 month time limit referred to above also applies here.

Depending on the circumstances you might also have other claims for unfair or constructive dismissal – you should take advice promptly to know your rights and options.

What are my rights as a part-time worker?

If you are a part-time worker, and believe that you have been treated less favourably than a full-time worker, you may be able to pursue a claim under The Part-Time (Prevention of Less Favourable Treatment) Workers Regulations 2002.

If you would like any help or support with any of the below, Remziye Ozcan, Slater & Gordon will be happy to assist you.

  • Drafting requests;
  • Challenging reasons;
  • Help with appeals;
  • Bringing discrimination claims;
  • Raising grievances;
  • Litigating; and
  • Negotiating exits, if that is your objective.

Huge thanks to Remziye Ozcan for her advice on the legal considerations for flexible working.  For anything else please do get in touch with sarah.broad@attunejobs.com

Flexible working, Slater & Gordon, Legal Rights

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