Right to Request Flexible Working

Previously only employees in particular categories were entitled to request flexible working, now any employee who has been employed for 26 weeks may make a request.

The extension of the right is perhaps not such a great one since even without legislation any employee has always been able to request flexible working – how could they be prevented from doing so after all?

As with the previous legislation, the right to make a request is not the same as a right to actually be allowed to work flexibly.  Employers do not have to agree to the request but if they are going to refuse, they can only do so on one of the statutory grounds.

These are:

  • The burden of any additional costs is unacceptable to the organisation.
  • An inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • The employer considers the change will have a detrimental impact on quality.
  • The employer considers the change would have a detrimental effect on the business’ ability to meet customer demand.
  • Detrimental impact on performance.
  • There is insufficient work during the periods the employee proposes to work.
  • Planned structural changes, for example, where the employer intends to reorganise or change the business and considers the flexible working changes may not fit with these plans.

Given the wide nature of those grounds, any employer who wants to refuse a flexible working request is likely to be able to find one that fits, especially given that employment tribunals are not going to want to spend too much time investigating an employer’s assessment of whether or not a ground actually applies.

However an employer who wants to reject a flexible working request is going to have to be careful to actually consider the request and respond to it with a reasoned response falling into one of the above grounds and to avoid any unlawful discrimination when doing so.

While the actual impact may not be great, the new legislation may lead to yet more paperwork for the beleaguered small employer.