Asking for flexibility can feel daunting, luckily our legal experts Cognitive Law have set out everything you need to know to ensure your flexible working request has the best chance of success. From the key aspects of the legal process to the tops tips to ensure you sell it successfully to your employer, and what to do if it isn’t a success, it's all here.
The Flexible Working Regulations 2014 granted all employees with more than 26 weeks’ service the right to apply for a flexible working arrangement in the UK. You can make a statutory application to the same employer once each year. The right to request flexible working does not extend to temps or agency workers.
For every flexible working request that is agreed, sadly there are many that are rejected, and once a request has been rejected it can become a thorny issue so it is worthwhile making sure that a request has the best possible chance of success.
The essential steps for making a flexible working request
These are the elements your flexible working request must contain in order to maximise the potential for success:
- State that it is a statutory request
- Be in writing and dated
- Explain the change the employee would like to make to their existing working pattern
- Explain when they would like the change to come into force
- Explain what effect the change would have on the business
- Explain how such effects might be positive or dealt with/overcome
- State if the employee has made a request previously, and if so when.
Once you have made the request, your employer has a total of three months within which to give its decision to you although this period can be extended by agreement between the parties. Your employer is under an obligation to consider the request in a “reasonable” manner.
If your employer decides to, they can accept the request without inviting you, the employee, to a meeting or they can invite you to a formal meeting to discuss the request in more detail before reaching a decision. If your employer does not accept the request outright then it can agree with you that there will be further discussions or agree to test the request using a trial period. Your employer can decide whether to confirm the request or reject it at the conclusion of the trial period.
If your employer rejects the request it must give you at least one of the permitted business reasons (as set out below) and you then have the right to appeal against the decision.
- Planned structural changes
- Burden of additional costs
- Detrimental impact quality or standards will suffer
- Inability to recruit additional staff
- Detrimental impact on employee’s performance
- Inability to reorganise work among existing staff
- Detrimental effect on ability to meet customer demand
- lack of work during the periods you propose to work.
Appealing a flexible working decision
If you decide to appeal, the appeal (with reasons) should be put in writing and you will be invited to an appeal meeting with your employer, following which the appeal will either be accepted or rejected. If it is accepted, your contract of employment will need to be varied to reflect the change to the working arrangements. This can be done by using a simple variation letter setting out the agreed changes.
Top tips for making your request a success
Many of the employers we advise are proud to promote a culture which embraces flexible working but, when making an application, you will need to bear in mind how to appeal to your employer that this change will be of benefit to the business.
We advise you to take the following approach to assist you towards making a persuasive flexible working request:
1. Write your request as a business proposition
In making a decision to accept your flexible working request, your employer will need to be convinced that it is workable from a business perspective. Take some time to consider the impact to your employer of your request. What adjustments and changes will they need to make to accommodate your request? Work through the list of justifiable reasons above that the employer could use to reject your request and consider whether your application is likely to fall into any of these areas? Show in your application that you have considered the situation from your employer’s point of view as well as your own.
2. Know your organisation’s culture and general approach to flexible working
Some employers will be more open to flexible working requests than others. Does your employer generally accept flexible working requests? Do many other employees have flexible arrangements? Does your organisation have a flexible working policy and any guidelines? Is the concept of flexible working alien to your organisation? If they fall into the flexible-friendly category, refer to this and their common practices in your request. If there is a lack of evidence of embracing flexibility, you are potentially asking for something that they have not had to deal with before, and so you may need to be prepared to create a more compelling business case.
3. Know your reasons and motivation for making the request
Why do you want to change your working arrangements? These may be very personal reasons, such as wanting to spend quality time with young children, collect your children from school or nursery at particular times, cut out your commuting time, be more productive by working from home, give you more time to care for an elder relative, pursue another interest … whatever it is, your employer is unlikely to want to know all the details. They just need to be convinced that you are committed to contributing and performing well in your job role. Remember that when you submit a flexible working request you are doing this in your professional employee role, not wearing your parent or carer hat. Make sure that you write your request rationally rather than emotionally.
4. Be prepared to negotiate
In knowing your reasons for wanting to request flexible working arrangements, whether it is around the hours that you work, the way in which you work or your place of work, think about your ideal arrangements and then think about what you are prepared to compromise on, if they are not workable for your employer following your initial request. Demonstrating some flexibility around your request, taking into account your own needs, along with those of your employer, will show greater commitment and understanding.
5. Link your request to your longer-term career ambitions
Showing your commitment to your longer-term career and longer-term contribution to your employer is likely to make your request more compelling. Show your commitment to continuing to learn and develop in your role and function.
6. Consider who will make the decision on your request
Is this a decision being made by your HR department, line manager, departmental Director or the business owner? If you are not sure, then ask the question so that you can ensure that you take into account any objections they may have. Whilst they are making a business decision, there will always be a subjective and emotional element in reaching a conclusion. Position your request in a way that will take into account their preferred way of communicating, their likely personal beliefs about your request as well as the business case.
7. Consider requesting a meeting to discuss your request in addition to a paper/electronic application
We recommend arranging an informal meeting with the decision-makers as part of your flexible working request. If you are returning from family-related leave such as maternity, paternity, shared family leave, adoption or caring leave, we encourage you to have a face to face meeting to discuss the arrangements for your return.
8. If your application is rejected, appeal!
You have the right to appeal against an application that is rejected. Consider the reasons why your employer has rejected your application and make any necessary changes to your request that you are able to accommodate to make it more likely to be accepted at the appeal stage.
If your request is turned down and either your employer’s flexible working policy hasn’t been followed properly or you’ve been given inadequate reasons for why it has been rejected, you may have a case to pursue through an employment tribunal.
Cognitive Law has a team of expert employment solicitors who can advise you. Please visit their website for more details and do not hesitate to get in touch on 0333 400 4499.