Your Right to Flexible Working: what does UK employment law say?

Your Right to Flexible Working: what does UK employment law say?

Flexible working means lots of different things to different people. It includes stuff like when you work, where you work, how often you work and who you work with. Reviewing employment law can show us how all of these things work and what the rules are around a flexible working request. This can be a good starting point when deciding if flexible working is for you.

Let’s start by looking at who is entitled to request flexible working. The right to make a statutory request for flexible working is written into employment law, but not all employees have the right to request it.

There are two paths to making a flexible-working request: a statutory request and a non-statutory request.

Statutory Request For Flexible Working

A statutory request is one that uses the process as defined by law. This must be followed by both you and your employer when negotiating the terms of your employment. The process requires you to make your flexible working request in writing, and for your employer to consider your request seriously and complete the whole process within a three-month period (including any appeal). You may only make one request within a 12-month period.

Right to Flexible Working

At present, the law allows a statutory request if you are an employee, have worked for your employer for 26 weeks on the date you make your application, and you meet the eligibility criteria.

Those who are not eligible include members of the Armed Forces, Agency Workers (unless you are returning from parental leave), those who have asked for flexible working in the last 12 months, or who are an employee shareholder (unless you are returning from parental leave in the last 14 days). (Note: you are likely to know if you are an employee shareholder, as it’s a form of employment, like being full-time. If you are unsure, it’s unlikely you are, but check with your HR team if you have questions).

Non Statutory Request For Flexible Working

You still have the option of making a non-statutory request. This is a request not made in accordance with the law on flexible-working terms and, as such, has no set process. We believe in doing this in a structured and process-based way to ensure your request is taken seriously. We recommend that you contact HR to find out if your company has its own scheme that will help your application but, if not, a written proposal gives you the opportunity to precisely outline the terms you seek.

Request For Flexible Working

The government provides a flexible working request form template that serves as a good basis to think about how you could structure your request.

It has sections to describe the current and requested future work pattern along with impact and mitigation this new working arrangement may create.  Making clear you understand what this change will mean, and how you plan to reduce any impact, is critical in creating the trust and agreement that your proposal is viable.

Employment Terms and Conditions When Working Flexibly

The next legal consideration is whether being a flexible worker will impact your terms and conditions. Moving from a full-time role – or even if you are just moving from being out of work to working flexibly – should not have a detrimental impact on your terms and conditions. From a wage perspective, you should be paid the same, pro rata, as a full-time employee. Holidays should also be the same, pro rata, as a full-time employee (as should any other benefits received).

If an employer attempts to give you worse terms and conditions because you adopt a flexible approach to working, this can be in breach of the part-time working regulations and you may be eligible to make a claim to an employment tribunal.

Statutory Employment Rights Remain Unchanged

Your rights as an employee are not directly impacted by working flexibly. Your Statutory employment rights – including unfair dismissal, maternity leave, Statutory redundancy pay, a written statement of terms and conditions, Statutory minimum notice, and itemised pay statements – all stay the same. Even if you reduce your working hours, you are still entitled to stay in or join an occupational pension scheme.

Looking Forward

It’s certain that legislative changes to flexible working employment rights are coming.  In the Queen’s speech at the start of parliament in 2019, the queen mentioned changes will come.

“Measures will be bought forward to encourage flexible working…” Queen’s Speech, December 2019

What these changes will mean is not yet clear but entitlement to flexibility at the point of hire (day 1 versus 26 weeks), requirements around advertising flexibility in roles, and requiring companies to publicly publish their policies are all possibilities.

Queen’s Speech: “Measures will be bought forward to encourage flexible working”

I hope this short overview of employment law helps you better understand the legislation and supports your first steps into flexible working.