Q1) Is Flexible Working now a “Day One Right”?
Firstly, to be clear, employees do not have a right to flexible working, but they do have a right to make a flexible working request.
Employment Rights (Flexible Working) Act 2023 is new legislation which came into effective on April 6th 2024. It is important to note that currently, this legislation only applies in GB.
The main impacts of this legislation in GB are that:
- Employees can make a request from day one of their employment (currently after 26 weeks of continuous employment in NI)
- Employees can make two requests within 12 months (currently one request within 12 months in NI)
- Employers must consult with an employee before refusing a request, and the new legislation removes the need for employees to explain or justify the impact of the proposed change to their working arrangements. All relevant information must be understood by both parties before a decision is made (currently there is less of an obligation on employers in NI).
- When a decision has been made, the employer must inform the employee in writing without delay (there is a statutory two-month period for addressing requests including any appeals). The decision should make clear what has been decided and why (currently a statutory 12-week timeframe in NI).
Therefore in short, no flexible working in not a day one right in Northern Ireland, but it is in Great Britain.
The remainder of this article will focus on flexible working as it stands currently in NI.
Q2) What does flexible working mean?
This does not just mean reduced hours as often perceived, but could include: part-time working, home working, hybrid working, flexitime, job sharing, compressed hours, annualised hours, term-time working and team-based rostering for example. It may also be a formal or informal arrangement.
The benefits of allowing employees more autonomy over their working arrangements are well-documented, such as greater engagement, better work-life balance, and lower stress. Employees who work flexibly are less likely to take time off work for childcare issues or mental health issues, for example.
Q3) What is the process?
Anyone can ask their employer for flexible working arrangements, but the law provides some employees with the statutory right to request a flexible working pattern via the formal route.
In northern Ireland to have a statutory right they must;
- be an employee but not an agency worker other than those returning from a period of parental leave or in the armed forces
- have worked for their employer for 26 weeks continuously before applying
- have not made another application to work flexibly under the right during the past 12 months (unless it relates to a request to consider reasonable adjustments on account of disability under the Disability Discrimination Act 1995).
Note; The right to make a flexible working request is open to all those who meet the above eligibility requirements. It can be made for any reason, and it is not restricted to parents or carers.
Applications should;
- be made well in advance of when they want it to take effect
- be in writing, as a letter or email
- be dated
- state that the application is made under the statutory right to request a flexible working pattern
- give details of the flexible working pattern they are applying for including the date from which they want it to start
- explain what effect they believe the new working pattern would have on their employer and how any such effect might be dealt with
- state whether they have made a previous application and when they made it
Applications can be made by either;
- filling in a form given by the employer
- filling in a standard form
- sending the required information in a letter or email.
Upon receiving an application from an employee, a meeting must be held within 28 days, which allows the employee the right to be accompanied. Employers must notify an employee of their decision within 14 days of the meeting. An acceptance letter must communicate the arrangements, including;
- detailing their new working pattern
- stating the date on which it will start
- ensuring that this notice is dated
- stating that the arrangement means a permanent change to the employee’s terms and conditions of employment (unless agreed otherwise). Trial periods can be agreed, however they must have a set and reasonable timeframe.
If an employer decides that they cannot accommodate any kind of flexible working for an employee, they must write to them:
- stating which of the listed business ground(s) apply as to why they cannot accept the request (choice of 8 reasons)
- providing an explanation of why the business reasons apply in the circumstances
- setting out the appeal procedure
- This written notice must be dated
Note; Employers may make a partial acceptance of a flexible working request, in which they may provide a business ground for why an element of the request may not work, and why that element is rejected
Appeal
The employee has 14 days from receipt of the above, to make an appeal. The employer then has 14 days to hold a meeting to hear the appeal. The employee must be informed of the outcome of the flexible working request appeal in writing, within 14 days after the date of the appeal meeting.
Note; Employees do not at any point need to provide a reason for their application for flexible working.
Q4) What should I be mindful of?
Whilst flexible working arrangements have become more common place, issues can arise for example when;
- An application is not given genuine consideration
- An application is rejected for a reason which may give rise to a discrimination claim
- An employer does not follow statutory procedures, or falls outside of the timeframes
- An employer does not actually recognize that a formal request is being made
- An employer does not apply their decision making consistently or fairly
- An employer wrongly assumes that a flexible working request has been withdrawn
- An employee is either dismissed or discriminated against as a result of applying for, being granted or complaining about flexible working arrangements
- An employer accepts flexible working requests which genuinely cannot be accommodated within the workforce, without detrimentally impacting others
- An employee’s request may fall into or overlap with another statutory right, such as the right to parental leave which provides further entitlement
- An employer does not have, or does not follow their own policy in relation to flexible working requests and practices.
It is clear therefore that refusal of a flexible working request can cause further employee relations issues, up to and including tribunal claims. However, that is not to say employers should grant every request or be fearful every time one comes in.
Whilst we have explored the black and white statutory elements of the legislation here, the “must do’s”, flexible working in its broadest sense offers huge opportunity in relation to both recruitment and retention and can also be used as a valuable operational tool. It can allow for a much more agile way of working and it is infact considered one of the most sought after “benefits” for today’s working age individuals.
If you need any support with flexible working requests, or if you have queries regarding introducing flexible working initiatives, do reach out to us.
