I have had a query from a member of staff about the possibility of flexible working arrangements starting in July. What should I do?

Patricia Rooney, Tughans Solicitors, Belfast writes:

The current statutory right to request flexible working under The Flexible Working Regulations 2003 and 2007 applies to employees who:

• Have 26 weeks continuous employment at the time the request is made;
• Have not made a previous request to work flexibly in the last 12 months;
• Have caring responsibilities for a child aged 16 or under (or a disabled child under the age of 18) and are either the child’s mother or father, adoptive parent, guardian or foster parent, or the spouse/civil partner of the child’s mother, father, adoptive parent, guardian or foster parent;
• Have or expect to have responsibility for that child’s upbringing;
• Make the application in order to care for the child:
• Are, or expect to be, caring for a person aged 18 or over who is in need of care and who is married to, the civil partner or partner of the employee: or a relative of the employee: or who lives at the same address as the employee.

At present, employees who satisfy the above requirements, should complete an application for flexible working and both employee and employer ought to comply with the statutory process surrounding the application. Allowing for the request, meetings, right of appeal etc., this statutory process can take up to 14 weeks.

The employee may request a change to terms and conditions of employment to cover the following:

• Change to the number of hours they work;
• Change to the times when they are required to attend work;
• Change of location, e.g. home working.

and you should seek clarification of this from the employee.

If the you accede to the request for flexible working, the employee’s contract of employment is varied and both parties must be sure of the new work pattern that has been agreed as a result of the flexible working request. Best practice would suggest that you should issue a new contract, to be signed by the employee setting out the terms as agreed following the request or at least a letter identifying those terms and conditions of employment which have been agreed.

When an employee has a statutory right to request flexible working, you are obliged to consider the request. You are not however, obliged to grant the request and may refuse it, either on the grounds of the employee’s eligibility or on procedural grounds.


The legislation identifies eight specific grounds on which you may refuse a request, namely:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demands;
• Inability to organise 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.

If after careful consideration, you are minded to refuse an application, it is essential that you document the reasons for the refusal and provide a sufficient explanation to the employee.

In the event that the employee is dissatisfied with the outcome of the process, including any internal appeal, the employee may lodge a complaint with an Industrial Tribunal, within 3 months of any alleged procedural breach, or within 3 months of the date on which the employee was notified of the outcome of his/her appeal.

If the Tribunal upholds the employee’s complaint, the Tribunal may award compensation of up to eight weeks pay, subject to the current statutory cap.

You should, however be conscious that in addition to an employee’s complaint to a Tribunal that you have failed to comply with the statutory procedure or is dissatisfied with the outcome of it, an employee may also allege that they have been discriminated against on the grounds of their sex either on a direct or indirect basis and could also lodge proceedings alleging sex discrimination.

This is all the more reason for you to be able to fully demonstrate the grounds of your refusal. Indeed, there has been an occasion where the Employment Appeal Tribunal in England had held that an employer’s refusal to a flexible working request, amounted to indirect discrimination, and also a fundamental breach of contract thereby entitling the employee to resign and allege constructive dismissal.

The above sets out the current statutory procedure surrounding the eligibility, and process, in relation to an application for flexible working. I note however that you have not indicated the grounds on which your employee wishes to make a request.

It is proposed that in GB, from 30 June 2014 the right to request flexible working will be extended to all employees who have 26 weeks continuity of service at the time of the said request.

The current statutory application process will be abolished and the employer is to consider the request and act in a reasonable manner and deal with the application within three months of receiving the request.

ACAS will issue a statutory Code of Practice on the matter.

The issue of extending flexible working went to consultation in Northern Ireland, with the consultation period closing on 23 August 2013. The Department published its response yesterday:
http://www.delni.gov.uk/departmental-response-to-public-consultation-on-sharing-parental-rights-extending-flexibility-at-work-pdf-version.pdf

Consequently, at present, your employee has a statutory right to make a request for flexible working only if he/she meets the current eligibility criteria and has caring/child responsibilities. Even if the eligibility criteria are not met, however, as part of good employee relations, you might wish to arrange to meet with the employee concerned in order to discuss the request and see if it can be accommodated within the current working environment.