Requests for flexible working

By Tolley in association with Hannah Freeman at Old Square Chambers

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  • Withdrawn requests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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