Requests for flexible working

By Tolley in association with Hannah Freeman at Old Square Chambers
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The following Employment Tax guidance note by Tolley in association with Hannah Freeman at Old Square Chambers provides comprehensive and up to date tax information covering:

  • Requests for flexible working
  • Who has the right to make a request?
  • Scope of the right
  • Making a request
  • Breach of procedure by employee
  • What should the employer do with a request?
  • Deciding the request
  • Grounds for refusing a request
  • Withdrawn requests
  • Competing requests
  • Changes to benefits

The ERA 1996, ss 71–80EE (Part VIII) gives an employee the right to request flexible working by applying to his employer for a change in his terms and conditions of employment. Other statutory provisions relating to this right are found in the Children and Families Act 2014, ss 131–134 and SI 2014/1398 (both subscription sensitive).

ACAS has published a statutory Code of Practice on Handling requests to work flexibly in a reasonable manner . This Code must be taken into account by employment tribunals where it is relevant to a question arising in proceedings and employers would, therefore, be well advised to take note of it. The Code’s recommendations are supplemented by a Guide: The right to request flexible working .

Who has the right to make a request?

The person must:

  • be an employee
  • have been employed for at least 26 consecutive weeks (SI 20414/1398, reg 3 (subscription sensitive))

Certain categories of employee are excluded from the right, in particular:

  • agency workers (other than those returning from a period of parental leave) (ERA 1996, s 80F(8)(a))
  • employee shareholders (ERA 1996, s 205(2)(b))
Scope of the right

The right to apply for a change in terms and conditions relates to:

  • the hours the employee is required to work
  • times the employee is required to work
  • where, as between his home and a place of business of his employer, an employee is required to work
  • any other aspect of the employee’s terms and conditions as may be

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