Flexible working is a way of arranging working hours to suit an employee’s needs in a manner that is acceptable to the employer and appropriate to both the role in question and the business.

With UK lockdown restrictions requiring workers to work from home wherever possible, employers and employees alike have been forced to move quickly to adjust to home working, and in many cases adopt more flexible working arrangements.

With little indication of 'normal' practices resuming in the near future, increasing numbers of employers are expected to retain flexible working for their organisation. What are the main considerations?

What are different types of flexible working?

Flexible working can take many forms.

With flexitime, the employee works core hours, for instance, 10.00 am until 4.00 pm, but arranges the rest of their weekly hours around the core hours as suits them. They may wish to start earlier than their colleagues, work later, or work more hours on certain days than others.

A part-time arrangement allows the employee to work less than full-time hours in an arrangement that suits them, for instance, working four days a week instead of five, or finishing earlier each day so they are available to collect their children from school.

Job sharing is where two employees split the responsibility for a full-time job between them, each working part-time.

Under compressed hours, an employee works their usual number of hours but in less blocks of work and/or longer blocks of work. For instance, an employee could start earlier on four days so that they may only work half of the fifth day. 

Shift work is where several people work on the same job but over different periods of the working day, for instance, 8.00 am to 4.00 pm, 4.00 pm to midnight, midnight to 8.00 am. This form of flexible working is ideal where there is a need for constant cover, such as the emergency services.

With annualised hours an employee must work a set number of hours over the year but there is a level of flexibility over the arrangement of those hours, perhaps through working shifts or arranging working hours around a core set of hours.

Working during term-times only could be ideal for employees who have children at school, and could mean full-time hours are worked during term-times with paid or unpaid time off during school holidays.

Working from home is becoming increasingly common and could involve working from home for the entire week, two or three days, or regular part days.

Staggered hours is where an employee works different hours to their colleagues, perhaps starting earlier or finishing later.

Do you have to offer flexible working?

All employees who have worked for an employer for more than 26 weeks have the right to request flexible working and for that request to be reasonably considered by the employer.

So while an employer may not overtly state that they offer flexible working, although of course they may state that if they so wish, it is advised that they have a procedure in place for considering flexible working requests.

The answer to the question is therefore that while the employer does not have to offer flexible working, they do have to consider any requests for flexible working.

Who qualifies for flexible working?

Employees who have worked for an employer for more than 26 weeks have a right to request flexible working. 

Employees who have worked for an employer for a shorter period of time don’t have the right to request flexible working, but an employer may still offer flexible working to them.

How should employees make a request? 

The employee must make a dated request in writing that states the format of the flexible working, e.g. working from home for two days a week, when they would like the flexible working to begin, any previous flexible working requests made, their reasons for seeking the change to flexible working and how these changes could benefit the business, e.g. allowing them to work around childcare provision and in return they could work at their most productive times and reference any related legislation being relied on, such as the Equality Act 2010 or Disability Discrimination Act.

What are the flexible working rules?

The employer must consider the request, regardless of whether other employees in the workforce already operate on flexible working.

A meeting should be arranged with the employee to discuss the request without delay. The purpose of the meeting is to confirm the details of the flexible working arrangement, discuss the employer’s point of view, and gather any other information required. It may be that a middle-ground can be agreed on where the employer feels that the full flexible working arrangement requested by the employee isn’t feasible. 

The employee does have the right to be accompanied to the meeting by another employee or a trade union representative so it would be advised to provide the employee with sufficient notice of the meeting to allow them to make the necessary arrangements.

The employer must seriously and reasonably consider any request for flexible working, weighing up the viability of the new working practice. Considerations could include how might flexible working benefit the business? What are the disadvantages? Is it ineffective or impossible for the employee to work particular hours in the workplace? What would the costs be to implement the change? Would it have a detrimental effect on contact with the employee? How would it impact on other employees? Is there a compromise between the current arrangement and the full flexible working arrangement requested?

Where the request is accepted, it may be necessary to make changes to the employee’s contract of employment and carry out related risk assessments.

Where the request is denied, the employer must be able to prove that they have sufficient reasons for turning down the request for flexible working and that they have fully investigated the request fairly and within the law. The employee can’t make another request for flexible working until 12 months have passed.

The employee has the right to appeal this decision, whether informally, by raising a grievance or through an employment tribunal claim.

Legally, the employer must deal with the request within three months, including any appeals that the employee may make.

Can an employer refuse flexible working?

An employer can refuse a request for flexible working, but only if they have a valid and fair reason for doing so.

Each request for flexible working from an employee who has worked for you for more than 26 weeks must be considered. 

Once you have fully considered the request, discussed it with the employee, and weighed up the pros and cons of flexible working in this instance, you may refuse the request if you can fairly and legally demonstrate that it would not be feasible for that employee to work on a flexible basis.

If you should refuse a request, however, the employee has the right to appeal your decision.

Can you withdraw flexible working?

Employees have the right to request flexible working once they have worked for you for over 26 weeks. You can’t withdraw this right.

Where an employee works on a flexible basis, generally this can only be changed if both parties agree, or where a related grievance or disciplinary matter occurs.

Paida Dube is an employment law solicitor at DavidsonMorris, with specialist experience in workforce management issues, redundancies, settlement agreements and defending unfair
dismissal tribunal claims.