Flexible working: poisoned chalice? (Part 3)

1. Check eligibility for flexible working

First, check your employment contract to see if it mentions anything about flexible working. Many employers voluntarily go beyond the minimum rights guaranteed by statute and give all employees a right to request flexible working.

Next, check your eligibility under the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009, namely that you:

1. qualify as an "employee";
2. have at least 26 weeks' continuous service on the date you apply for flexible working;
3. either:
   (a) have responsibility (or expect to have responsibility) for the upbringing of a child aged under 16 or a disabled child aged under 18, and are the mother, father, adopter, guardian or foster parent of the child, or are married to, or are the partner or civil partner of, the child's mother, father, adopter, guardian or foster parent; or
   (b) are a carer who cares (or expects to care) for an adult who is a spouse, partner, civil partner or relative; or who although not related to you, lives at the same address as you.

2. Formally submit your request

A request to work flexibly and change the terms and conditions of your employment contract will ultimately need to be made in writing, either on paper or electronically.

You will need to explain why you are making the request and self-certify that you are eligible (see above).

The application should also specify the change(s) requested, (e.g., change to working 3 days a week), the date on which the proposed change(s) would take effect, and the date of any previous applications.

The onus is also on you to specify what effect the proposed change(s) will have on your employer and how any such change(s) might be dealt with.

Visit DirectGov for additional advice about what to include in your application and to download a template letter.

3. Meet to discuss your request

After receiving your request for flexible working, your employer must hold a meeting with you within 28 days unless, within 28 days of the day after the request was received, they send you written notice agreeing to the contract variation you have proposed.

The time and place of the meeting must be convenient to both parties. You have the right to be accompanied by someone if you request it (e.g., a union official or co-worker).

4. Request accepted / rejected

Within 14 days of the meeting, your employer should write to you notifying you of its decision.

If your employer accepts your request, it should specify the changes that have been agreed and the date on which they will take effect.

If your employer rejects your request, it should specify which of the statutory grounds for refusal apply (see below); and contain a 'sufficient explanation' as to why those grounds apply. The notice must also set out the appeal procedure.

5. Grounds for rejecting a request

An employer may refuse an employee's application for a change in terms and conditions where it considers that one or more of the following grounds apply:

• burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes;
• any other ground the Secretary of State may specify by regulations.

6. Appeal

If you want to appeal your employer's decision to reject your request, you will need to do so in writing within 14 days.

Then, within 14 days of receiving your appeal, your employer should arrange a meeting to discuss it.

7. Notice of appeal decision

Then, within 14 days of the appeal meeting, your employer must write and tell you whether it is accepting or rejecting your appeal.

8. Employment tribunal or arbitration

If your employer rejects your appeal, you may wish to pursue an employment tribunal complaint or arbitration through ACAS.

The deadline for submitting a complaint to an employment tribunal is within three months of:

1. the date on which the employee is notified of the employer's decision on the appeal; or
2. the date on which the breach of the regulations was committed.