Yes. If she has been employed for 26 weeks she can request flexible working under the formal right to do so.
An employee can make a request even if she has not been employed for 26 weeks, or has made a request in the previous 12 months. A refusal, which cannot be not justified, could be indirect sex discrimination.
An employee can ask to change:
- the hours she works
- the time she works
- working from a different place
This would cover:
- A reduction in hours, for example from 35 to 25 hours.
- Compressed hours, for example working 35 hours but over four days.
- Flexi-time, for example flexible start and finish times.
- Homeworking, for example, working from home for one day a week or a few hours each day.
- Requests for fixed rather than variable shifts.
- Term-time working.
Flexible working can be agreed informally without the need to go through the ACAS procedure.
If an employee asks about working flexibly, consider whether you can agree to it, taking into account the employee’s needs as well as the business needs.
Do not refuse without having good reasons to do so.
You can ask the employee to make a formal request following the ACAS procedure.
An employee must make a written, dated application setting out:
- Proposed change to working conditions and date of change.
- The effect of the proposed change on the work and suggestions of how the impact can be minimised.
- A statement that she is making a statutory request, with details of previous applications
- If the change is because of a disability or to care for a child or dependant, you should encourage the employee to say this, so it can be taken into account; unreasonable refusal of flexible working may be sex or disability discrimination.
Yes, you must follow a set procedure unless you have an informal discussion and agree a different work pattern.
If an informal discussion does not lead to an agreement, you should follow the procedure as set out in the ACAS Code on Flexible Working.
Following a request for flexible working, it is good practice to discuss the request with your employee as soon as possible. Although you are not legally required to hold a meeting, it is good practice to do so in order to discuss the proposal, any concerns you have and how the employee would deal with these. It is good practice to allow an employee to be accompanied to a meeting if requested.
You must consider the request in a reasonable way, taking account of
- The benefits of the requested changes for the employee and the business, weighing the benefits against any adverse business impact.
- Avoiding discrimination as a refusal could be indirect sex discrimination.
It is good practice to consider each request individually, following the guidance in the ACAS Code:
- You must consider a request from all employees, not just parents.
- The benefits of flexible working include retaining valuable members of staff. There is a lot of research which shows that flexible working is good for staff morale, so is good for business.
- If you cannot agree the particular request, you should consider whether other options would be suitable for your business, such as part-time working, job-sharing, compressed hours, a variation in hours, partial working from home, term-time working.
- Consider a trial period if you have doubts about whether the proposed flexible working pattern would work.
- Consider and discuss with the employee:
- How will the change impact on other employees; you may want to discuss it with them if the employee agrees?
- Who will cover the work?
- Will it be necessary to recruit someone else and how easy will that be?
- Will there be issues around continuity?
It is good practice to write to your employee setting out any agreed changes to her working pattern and the date it will start. This will usually be a permanent change to the employment contract unless you agree it will be on a temporary basis.
You must give a decision as soon as possible, at least within three months of the request. You should give the decision in writing.
It is also good practice to make a decision as quickly as possible so that you can plan the employee's return to work and the employee can arrange childcare.
You can refuse a request under the formal right to request procedure, for one of the eight reasons set out in the ACAS Code on Flexible Working, which are
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work, and
- a planned structural change to the business.
The employee does not have a right to appeal against your decision to refuse flexible working, but it is good practice for you to agree to allow an appeal.
The employee can then put forward further reasons about how her job could be done on the working patterns she has requested and to answer any concerns you have identified.
It is only if you can demonstrate that her current job cannot be done on the working pattern she has requested that you can consider offering her another job with flexible hours.
This might occur because, for example, her job involves essential travelling which she cannot do because of childcare responsibilities.
However, if she is offered a lesser job, she could say that it is not suitable and claim it is indirect sex discrimination to refuse her flexible working in her current job.
Yes, it will usually be a permanent change to the employment contract unless the employee asks for it to be on a temporary basis and you agree.
If you refuse the request for flexible working without a good business reason this might be indirect sex discrimination. An employee may take a claim to an employment tribunal.
The employee may argue, that a refusal to allow her flexible working in her current job is indirect sex discrimination for example if she believes her job could be done on different hours.
It is for you to show that her current job cannot be done on the hours she has requested.
If the employee can show that the requirement to do the job on the current hours particularly disadvantages women, then you must show that insisting on those hours is a proportionate way of meeting a business need.
An employment tribunal will decide if you have good business reasons to refuse.
Your employee may have a claim against you for:
- Failure to consider the flexible working application in a reasonable manner.
- Failure to notify the employee of a decision within three months.
- Refusing the application without a specified business reason.
- Disadvantaging or dismissing her for making a request.
A tribunal may order you to reconsider the employee’s application or make an award of compensation.
Last updated: 21 Dec 2018