An employee’s statutory right to request flexible working was dramatically widened in June 2014. Before this date, employees needed to meet prescriptive eligibility requirements, such as having caring responsibilities for either a child or an adult in need of care. Now, for an employee to be eligible to make a request for flexible working the individual must:
- be an employee – including part-time or fixed-term employees but not contractors, consultants, or agency workers
- have at least 26 weeks’ continuous service at the date the application is made
- not have made a request for flexible working in the previous 12 months.
That said, the law allows eligible employees to request flexible working but does not offer any guarantees that the employee will actually receive flexible working. Employees do not have the right to flexible working on demand, but rather a right to submit a request to their employer.
On receipt of the request, following the law change, your client is under a duty to consider the request in a reasonable manner, but does not have to follow a statutory procedure. If the request is agreed, this will mean that the employee’s contract will be permanently changed, unless expressly agreed otherwise.
There is no automatic right for an employee to change back to their previous working arrangements if their circumstances change. Similarly, there is no right for your client to require the employee to revert to their previous working arrangements. Any unilateral imposition of a different working pattern by your client would be a breach of the employee’s contract; however, there is no reason why both your client and the employee cannot mutually agree a further change at some future point in time.
There is an important point that your client must consider; if they dismiss an employee because they have made a flexible working request, this dismissal will be automatically unfair (and in such cases, there is no minimum service requirement in order for the employee to bring a claim). Depending on the way in which the employer handles a flexible working request, it could also give rise to a constructive unfair dismissal claim. It may also lead to discrimination claims. These claims can be costly and time-consuming for your client.
The employee’s pay may not be impacted depending on the type of flexible working arrangement your client comes to with the employee in question. For example, if the employee were to change from full-time work to part-time, their pay may reflect the number of hours they will be working under the part-time contract. However, if the employee were to work from home rather than the office, the pay may stay the same if the job requirement and resources available to the employee is the same as if they were to be working from the office.
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