While the majority of us will have come across flexible working at some point, many people are blissfully unaware of their rights and the obligations of their employer. You may have previously applied, one of your colleagues may have applied, but were you aware of the correct process and the options available?
In this article we will look at the rights and obligations of various parties, the options available and what you can do in the event of dispute.
- What is flexible working?
- Submitting a statutory request for flexible working
- Changes to your employment contract
- Adjusting your working terms and conditions
- Protected employment terms and conditions
- Solving employment disputes
- Know your rights regarding flexible working hours
While the term flexible working effectively describes itself, there are numerous different types of flexible working which can significantly alter your working week. Even though nothing is set in stone, everything is up for negotiation, some of the more common options include:-
- Switching from full-time hours to part-time hours
- Those already working part-time hours may have the option to switch from weekdays to weekends, and vice versa
- Employers are obliged to consider flexible working arrangements in tandem with school hours, further education hours and care arrangements
- Extending your working day to fulfil your contracted hours over fewer days
- Flexitime is a common arrangement, where employees are able to come and go as they please during specific working slots
- Many people are now switching to home/remote working, whether part-time or full-time
- Job sharing may also be a possibility if your employer is receptive to the idea
- Self-rostering allows employees to vary their shift patterns to accommodate issues outside of the workplace
- Shift working is often flexible
- Staggered shifts are popular, giving flexibility to employees and allowing employers to cover extended hours
- Time off in lieu
- Annualised hours, the option to schedule your annual hourly obligations to suit your specific requirements
- Reduced hours during school holidays is a popular flexible option with parents and grandparents
This list is by no means exclusive – there are many different options available which you will need to negotiate with your employer. We will now take a look at the process of applying for flexible working hours. There are three specific types of request you will need to consider:-
- Statutory request
- Non-statutory request
- Employer sponsored scheme
Before we look at the options available, it is important to note that many employers will proactively look to accommodate all flexible working requests. The idea behind this is simple; a happy employee is a more productive employee. So, while many people automatically assume that flexible working works against the employer and in favour of the employee, this is not necessarily the case.
As the term suggests, a statutory request for flexible working hours is covered under employment law. After making the request, there is a defined formal process to follow and various obligations are activated. While nothing is set in stone, the request must be acknowledged and some form of negotiation undertaken.
It is important to note that not all employees will be eligible to submit a statutory flexible working request. In order to do so, you must:-
- Have worked continuously for your employer for at least 26 weeks
- Be legally defined as an employee
On occasion, you might meet the basic entitlement conditions but, for various reasons, you may not have the right to request statutory flexible working. Those excluded under additional conditions include:-
- Agency workers
- Employees who have submitted a flexible working request within the previous 12 months
- Employee shareholders
For some reason, making the situation a little more complicated, the authorities have also added a number of caveats:-
- Agency workers returning from parental leave will have the right to request statutory flexible working hours
- Employee shareholders returning from parental leave, within the last 14 days, will also have the statutory right to apply for flexible working hours
Many people find themselves in a situation where without flexible working hours they may be forced to reconsider their position. As you can see above, there are various exceptions to the basic rule and then we have additional exemptions. It is therefore important that you take advice regarding your right to flexible working hours.
We live in an age where employees and employers have an array of rights and obligations, although ultimately the goal is to work together. Therefore, if you do not qualify for a statutory request for flexible working hours you can make a non-statutory request. Before you do so, it is important to realise that:-
- Your employer is not obliged to grant your request
- There is no set formal process for this type of request
- While the process is not covered by employment law, any changes will be legally binding
It is important to differentiate between a formal legal process for your request and your employment rights. Your basic employment rights are set in stone and while they can be enhanced, they cannot be diminished. Any attempt to do so would be unlawful and would not hold up in a court of law.
On occasion, we have seen employees who are eligible to submit a statutory request for flexible hours, choosing the non-statutory route. This tends to be more suitable where the changes are relatively minor or temporary. It would save on formal rewriting of your employment contract, while still being a recognised arrangement between an employee and their employer. Something to consider.
Many employers are now more open to discussing flexible working hours with their employees. In many scenarios it may be preferable to the employer and more convenient for employees. In recent times we have seen a growing number of employer-sponsored flexible working schemes. These are similar to non-statutory requests, although various eligibility conditions may be included.
Normally such a scheme would be mentioned in your employment contract, although on occasion they may be covered in isolation under separate documentation. As a consequence, it may be an idea to approach your human resources department/representative to see whether such a scheme is in place and how it operates. While such schemes will often replace/enhance the non-statutory submission process, your statutory rights are set in stone.
Switching from traditional working hours to a more flexible approach can often cause more challenges than many employees expect. As a consequence, there are numerous different ways in which you can approach any changes to your employment contract. These might include:-
- A trial period, after which further consideration would be given to making the changes permanent
- Temporary changes, often introduced when there are short-term adjustments to an employer’s lifestyle
- Permanent changes, taking in issues such as childcare, dependents, medical issues, etc
Obviously, any change to working hours/structure would need to be agreed by the employer and the employee. While submissions for flexible working hours are obviously not taken lightly, on occasion an employee may wish to revert back to their previous arrangement. This is something which can be negotiated with your employer.
Many people seem to merge the subjects of employment rights and adjusted working hours without fully appreciating the legal position. For clarity, there are a number of issues to consider such as:-
When requesting extra working hours, you are entitled to remuneration on a pro rata basis. So, if for example you were to reduce your working hours by 50%, your gross remuneration would reduce by 50%. This is not an opportunity for your employer to renegotiate your hourly rate of pay.
- Holiday entitlement
In a similar fashion to the pro rata basis used to calculate changes in your remuneration on flexible working hours, it is the same for your paid holiday entitlement . However, it is important to remember your diminished holiday entitlement when reducing your hours!
Some employers may see an application for flexible working hours as an opportunity to renegotiate your overall employment contract. This is illegal. Your employer can’t force you to accept worse terms and conditions as a consequence of your new flexible working hours. There is a common misconception that switching from full-time to part-time hours will see a reduction in your employment rights, it doesn’t.
The following statutory employment rights are set in stone:-
- Minimum notice period
- Maternity leave
- Claims for unfair dismissal
- Itemised payslips
- Written statement confirming employment terms and conditions
- Option to join/remain in your occupational pension scheme
While thankfully statutory employment rights are protected, a reduction in your remuneration could impact some additional payments. For example, a reduction in your salary would impact redundancy and bonus payments. These are payments which are traditionally based upon salary and/or duration of employment.
Unfortunately, there are occasions where employers have misinterpreted the rules and regulations or tried to push through illegal changes. If you believe that your rights have not been respected, or the correct procedure has not been followed, it is important that you make your employer aware of your concerns. There are four options available in this scenario:-
- Approach your employer on an informal basis
It may be that your employer has simply misinterpreted the rules or made a genuine mistake. As a consequence, an informal approach should be your first consideration. You should gather as much evidence as possible to prove your rights and how they may have been neglected.
- Formal approach
Where your informal request to review a submission for flexible working hours has proved unsuccessful, the next option is a formal approach. It is important that there is an actual/virtual paper trail with this type of approach. This will minimise misunderstandings and may prove extremely helpful if the situation progresses further.
Arbitration services such as ACAS can prove to be an extremely useful option where there are differences of opinion. While not always legally obliged to accept the ruling, both parties have an option to put their case to an unbiased observer.
- Employment tribunal
In many cases, you must have at least attempted the arbitration process before making a formal request to an employment tribunal. If you have attempted arbitration, but your employer has refused to partake, this would not reflect well on your employer.
It is safe to say that the majority of employer/employee disputes tend to be resolved in an informal manner. This saves time, money and on many occasions will allow the employer/employee relationship to be maintained going forward.
Many people automatically assume that flexible working hours are more beneficial to employees than employers; this is not always the case. We live in an era where flexible working is more commonplace, were outside commitments can impact your working life and many employers/employees are willing to find some middle ground.
While the majority of flexible working requests are negotiated to the benefit of all parties, on occasion things may not go as planned. Therefore, it is important to be aware of both your rights and your obligations in this area, allowing you to negotiate the best deal for your situation. In the event that your employer refuses to acknowledge your flexible working rights, there are various routes you can take to exact retribution.