25th October 2021

Flexible Working: Is 9-5 the only way to make a living? Part 1 – Who can make a flexible working request and how to make one

Dolly Parton famously sang “9-5, what a way to make a living”. She might have been right. Traditional working hours have doubtless declined over the past few decades as work becomes more flexible, whether that is because of caring responsibilities or to allow people to work more from home (the pandemic has certainly accelerated that trend). There is perhaps a misconception that only certain employees (for example those with children) have the right to request to work more flexibly. That is not correct.

This series of blogs aims to explore the right to request flexible working. Part 1 will discuss who can make a request and how they should do it, part 2 will set out how an employer should deal with a request once received and part 3 will set out whether an employer has to grant a flexible working request and, if they want to decline it, how they can do so.

Who can make a request?
Previously, the list of those who could make a flexible working request was more restrictive. Now, anyone who is an employee and who has 26 weeks’ continuous employment at the date of their request can submit a flexible working request.

How often can employees submit a request?
Only one request can be made in any 12-month period. That is counted from the date that the employee makes their original request. An employer can however decide to allow more than one request in that time, if they choose.

How does the employee make a request?
The regulations require a flexible working request to be in writing. It must also be dated. The employee should state that they are making a request under the statutory procedure and they should confirm whether they have made a request before (and if so, when).

In relation to the proposal they are making they should outline what change they are seeking to their working pattern and from what date they propose the change begins. This could be a change to working hours, working days or where they work (such as from home).

The employee should also outline in their request what impact their proposed change would have on the employer’s business and how they envisage that those effect(s) could be addressed or mitigated.

The request should then be submitted to the employer to be considered.

Top tips for employers

1. Don’t be too technocratic!
If an employee approaches you on an informal basis and asks about flexible working or, for example, forgets to date their request, don’t just ignore them because either is not in the required statutory form. Ask the employee to put their request in writing or ask them to correct the minor error, as required, in order for the substance of the request to be considered.

2. Manage expectations to avoid issues
The pandemic has perhaps created an expectation with some employees that their current flexible working arrangements will become permanent because they have, for example, worked at home for a long period of time or if they simply ask. A clear policy will avoid unrealistic expectations and set out what the employee has to do if they want to utilise flexible working in the longer term. Also, keeping employees up to date with proposed changes to working arrangements, such as the reduction or phasing out of home working when appropriate, can also assist with this and allow any issues to be dealt with.

3. Be mindful of potential discrimination
Remember that even though an employee may not have the statutory right to request flexible working, or they might not have complied with the statutory requirements, any request should be dealt with seriously and appropriately. If the employee is asking for flexible working, in order to attend medical appointments for example, and this is refused without careful consideration, even though they do not have the required length of service, the employee could potentially bring a disability discrimination claim.

If you need any assistance with flexible working requests, including putting appropriate policies in place, please get in touch with the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow and Perth.

Blair Duncan, Solicitor
Employment Law
Blackadders LLP
@EmpLawyerBlair

www.blackadders.co.uk

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