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Flexible Working

Although it has been in place since June 2014, there are still lots of legal firms, and indeed businesses in general, that are not aware that employees now have the right to ask for "flexible working" under the Employment Rights Act 1996

So what is flexible working?

Flexible working is when an employee requests a variation in their working patterns that may be to alter their hours of work, their times of work, or their place of work (as between home and business only).

Previously this right only applied to carers and parents, and some legal firms may have had a policy for it, which would now need to be updated, or if a firm didn't have one, then one should be put in place.

What should a flexible working policy include?

Any such policy should firstly show the scope of the policy, i.e. who it applies to, and who it does not apply to within the business. For example, the right to request flexible working does not apply to an employee without a contract of employment, therefore agency or temporary workers are not included. The period of employment is also a criteria, with employees needing to have worked for a business for 26 weeks continuously at the date that the application is made. Also important is that the employee cannot have made another application to work flexibly under the right during the past 12 months.

As well as the scope, any policy should describe the procedure for an employee to make a request under the policy, for example, any request must be made in writing and be dated, it must include the employees' proposal with explanations about how the employee thinks the business may be affected and how any adverse consequences can be dealt with, as well as a specified start date, and whether any previous application has been made. It also needs to set out who the application should be made to, whether it is a supervisor, manager or partner.

It is important that employees' attention must be drawn to the fact that if the firm approves their application, the variation in contractual terms will stand for at least 12 months and the employee has no automatic right to change back to their previous pattern of work, unless the application seeks the variation for a specified time period only. A trial period may be agreed.

The policy then needs to set out the response of the business following the application by the employee. If the business has no objections to the application, then it can simply inform the employee of agreement with the relevant start and end dates.

If however there are objections, then there must be a procedure in place to communicate this to the employee. Typically, the business would arrange a meeting with the employee within 14 days of receiving the application to discuss the request. If so desired, the employee can be accompanied by a work colleague for any such meeting. After the meeting has concluded, then the business must notify the employee of their decision within 14 days of the date of the meeting. This notification will either:

  • accept the request and establish a start date and any other action or;
  • confirm a compromise agreed at the meeting, or;
  • reject the request and set out clear business reasons for the rejection together with notification of the appeals process

 Following any such meeting, the business must arrange to hear the employee's appeal within 14 days of being informed of the employee's decision to appeal. Similarly to the initial meeting, the employee must be allowed to be accompanied by a work colleague if they so wish. Once again, communication following an appeal must;

  • notify the employee of the decision on the appeal within 14 days after the date of the meeting. The notification will either:
  • Ø uphold the appeal, specify the agreed variation and start date or
  • Ø dismiss the appeal, state the grounds for the decision and contain a sufficient explanation of the refusal.

 Refusals to allow flexible working must include the business reasons for such refusal. Typical business reasons could be for example, the burden of additional costs is unacceptable to the firm, or an inability to meet client demand, amongst others.

 So, for those that don't currently have a flexible working policy in their office manuals or associated policies and procedures, now is the time to draft one.