Overview

COVID-19: The Coronavirus pandemic has had an unprecedented impact on employers and society internationally, and this is likely to accelerate a working revolution following the end of the pandemic that was already underway, involving the use of remote, flexible and gig-working options.

This raises several issues for employers, ranging from practical matters, such as subsidising home broadband costs and supplying laptops, to psychological issues, such as keeping staff motivated and productive while working remotely. Other practical issues likely to arise include managing video conferencing and training less adept staff in the use of remote working platforms. Technical matters might include IT systems’ ability to support remote working, and maintaining security, data protection and disaster recovery sites.

Whilst employers will be adapting their own flexible and remote working policies to deal with these issues, more government guidance and, perhaps, legislation seem likely to be on-going. Employers may wish to revisit their own policies to ensure they accurately reflect the flexible working options available once the lockdown has fully ended.

A statutory Code of Practice on handling requests to work flexibly in a reasonable manner and practical guidance on Making a flexible working request is available on the Acas website.

These Q&As should be read alongside our Case law on requesting flexible working.

Gender pay gap

The Equality and Human Rights Commission (EHRC) has reported that as more requests for flexible working come from women, those who choose reduced working hours also accept reduced status and career prospects, thereby reinforcing the gender pay gap. In its report entitled Working better, the EHRC suggested extending the right to request flexible working to all employees (which was implemented in 2014) and also a formal right to request a return to full time work, which would be negotiated subject to business needs. It may still be that a right to request returning to full time work after a flexible working period will be reconsidered in the future, although legislative changes to flexible working are more likely to be tailored to the post-Coronavirus pandemic situation.

Brexit

The majority of family-friendly rights, including the right to request flexible working and time off for training, originate in the UK, so it is unlikely that these rights would be changed just because the Brexit transition period ends on 31 December 2020. Changes are more likely to result from experiences during the Coronavirus pandemic.

For more information on what Brexit might mean for employment law in general, visit our Brexit Hub.

Employees do not have a right to work flexibly but many do have the right to formally request more flexible working arrangements.

The Flexible Working Regulations 2014 require individuals requesting the right to work flexibly to meet the following requirements. They must:

  • have employee status (see our Employee status Q&As)
  • have been continuously employed by the employer for at least 26 weeks by the application date
  • have not made another application to work flexibly during the past 12 months

Employers have a duty to consider the requests in a reasonable manner. A request which is refused may give rise to a claim for breach of the flexible working legislation, or for sex discrimination, or potentially for age discrimination. Handling a request correctly is therefore extremely important, as for example, there have been an increasing number of successful sex discrimination claims where an employer has refused a request for flexible working, especially where the request involves part-time working (Under previous legislation, only those with children under the age of 17 – or 18 if the child was disabled – and certain carers were entitled to make a flexible working request).

Exclusions

Employers can consider any flexible working request voluntarily but only employees can make the statutory request for flexible working. Fixed term and part time employees are included but self-employed contractors are excluded.

Agency workers are also generally excluded except when returning to work following a period of parental leave.

The current procedure for employees when requesting flexible working is as follows:

The employee should make their request to change their terms and conditions of employment in writing (including email) specifying:

  • the change applied for
  • that the application is being made under the statutory right to request flexible working
  • if and when any previous application was made
  • the date on which it is proposed the change should become effective
  • the effect, if any, the employee thinks the change would have on the employer
  • how, in their opinion, any such effect might be dealt with
  • the date of the application.

There is a standard form for employees to use when making a flexible working request on the Gov.uk website.

Employer’s should avoid an overly technical approach when responding to requests for flexible working. If the employee makes a mistake in their request, the employer can point this out and still consider the request properly.

Those employers who have adopted their own flexible working policy should ensure, as a minimum, that it reflects the statutory provisions and complies with the Acas Code of Practice and guidance.

Prior to 30 June 2014, employers had to follow a more formal statutory procedure when considering requests. The employers’ duty now is simply to consider all requests in a reasonable manner. 

1. If the employer does not wish to immediately grant the request in the form it is made, the Code suggests employers should:

  • talk to the employee as soon as possible after receiving the written request
  • meet with the employee at a time and place convenient to both parties
  • allow the employee to be accompanied by a work colleague at the discussion meeting
  • discuss the request with the employee in private where they will not be overheard apart from by the companion.

2. After the meeting the employer must consider the pros and cons of the request, taking into account the explanations the employee has given and being careful not to discriminate.

Once the employer has made its decision, it must inform the employee in writing as soon as possible (it is also sensible that the decision is dated).

3. If the request is refused, the notification must only do so on one of the grounds for rejection set out in the legislation with an explanation as to why those grounds apply. The employer should allow the employee to appeal the decision.

4. If the employee appeals the decision, the employer can produce new information or explain any seemingly unreasonable aspects of the employer’s procedure in considering the request.

5. All requests and appeals must be considered within a three-month timeframe unless the parties agree to extend this period.

6. If there are problems with arranging the date and time for the request meeting, or the appeal meeting, and the employer then fixes a subsequent meeting at another date and time, if the employee fails to attend the rearranged meeting without good reason the employer is allowed to consider the request as having been withdrawn. The employer must inform the employee accordingly.

7. The employee should at the very least (as Acas recommends) be allowed a companion who is employed by the same employer as the applicant, or a trade union representative. However, employers can always choose to allow a companion who does not work for the same employer (for example, a family member). The companion can address the meeting and confer with the employee but should not answer questions on behalf of the employee. Employers should also allow employees to be accompanied by work colleagues at any appeal meeting as well and employees should be informed of their right to be accompanied before any discussion. If employers prevent this, they are unlikely to have dealt with the request in a reasonable manner.

The Acas statutory Code of Practice and guidance on handling requests to work flexibly in a reasonable manner provide more guidance on the above steps.

A qualifying employee can request a change to the terms and conditions of their employment relating to, for example:

  • their hours and times of work
  • their place(s) of work.

They may, for example, make a request for:

  • part-time working
  • job sharing
  • working from home
  • working term-time only
  • working shifts
  • increasing their holiday entitlement.

The legislation does not require the employer to make a value judgment about the employee’s reasons for seeking flexible working. An employee can make a request to work flexibly for several reasons, ranging from because they wish to spend more time at home to having parental or other caring responsibilities.

The employer should decide whether to grant the request by focusing on the needs of the business and whether flexible working can be accommodated, rather than evaluating the employee’s personal circumstances.

Accordingly, if an employer receives two requests for flexible working at the same time, one request relating to caring for an elderly disabled relative and the other to enable the employee to spend more time relaxing, the employer is not required to make value judgements about the most deserving request. Instead, the employer must:

  • consider each request in the order in which they were made
  • consider each request in the context of business needs
  • consider the impact of the first request and, if it is accepted, take account of the changes this will make to staffing when considering the second request.

Acas guidance suggests, alternatively, that if two requests are received at the same time, the employer may decide to discuss whether some adjustment or compromise by both the employees would enable both requests to be accommodated.

Although employers are not supposed to make value judgments in the context of the flexible working legislation, a sensible employer will bear in mind that some employees have extra legal rights under other legislation. So, for example, an application to care for a disabled family member will give that employee the protection of bringing an associative discrimination claim under the Equality Act 2010 if their request is refused. It may be sensible to focus more on trying to accommodate a request from an employee who has extra protection because of the nature of their request.

COVID-19: During the Coronavirus pandemic, many diverse workplaces from banks to colleges have been obliged to experiment with employees working from home and other forms of flexible working. Once the local and national lockdowns have fully ended, employers may need to consider future requests for flexible working. It may be harder to establish grounds for refusal because more flexible options have been demonstrably feasible during the pandemic. Employers should keep a detailed record to show they carefully considered requests and their grounds for refusal.

An employer can only refuse a request for flexible working if they can show they considered the request reasonably and refused it for one of the following business grounds:

  • inability to rearrange work among existing staff
  • burden of additional costs
  • detrimental effect on the ability to meet customer demand
  • inability to recruit additional staff
  • detrimental impact on quality or performance
  • insufficiency of work when the employee proposes to work
  • planned structural changes.

These grounds potentially give an employer some scope for refusal. However, refusing a request for flexible working may give rise to a sex or disability discrimination claim if it is not handled carefully. An employer should allow requests where they can, on a trial basis where necessary. If they do refuse a request, the facts of each case should be carefully considered and documented, particularly the reasons for refusal. Requests for job shares, for example, will be especially difficult to refuse on the basis of the above grounds. A bland assertion that ‘customers or clients like dealing with one person’ is not enough.

An example is a doctor's receptionist who applies to leave two hours early from work each day to spend more time with her family. There is only one other receptionist and the last two hours of the day are a very busy time as this is when the surgery is still open for appointments. There are no other staff available to cover her last two hours of the day. The employer decides that agreeing to this request would place unreasonable pressures on the other receptionist and turns down the request on the following grounds:

  • inability to rearrange work among existing staff, and
  • the detrimental effect on ability to meet customer demand.

There are further examples of the application of these grounds for refusal set out in the Acas guidance (see Overview).

If an employer refuses a request for flexible working, the employee must wait 12 months from the date on which their last application was made before making any further requests unless the employer agrees to voluntarily consider another request within a 12-month period.

Hopefully most requests for flexible working will be resolved amicably. However, in the few cases where matters escalate, an employee can make a complaint to an employment tribunal. Since the introduction of early Acas conciliation, employees cannot submit a claim to a tribunal without an early conciliation certificate confirming that the case was referred to Acas beforehand.

An employee can make a requesting flexible working claim on a number of grounds including that:

  • the employer has failed to deal with the application for flexible working in a reasonable manner
  • the employer failed to notify a decision within the correct timeframe
  • the application was rejected on the basis of incorrect facts
  • the employer rejected the application for a reason other than one of the business grounds
  • the refusal to allow the request for flexible working (for example, by refusing part-time working) amounts to indirect sex discrimination contrary to the Equality Act 2010 or possibly some other form of discrimination based on disability, age or religion and so on.

The employee could also make a claim for unfair dismissal if they have been dismissed or subjected to a detriment for exercising, or proposing to exercise, rights under the flexible working provisions (in most cases this will be automatically unfair).

See our Part-time workers Q&As and Sex discrimination Q&As for further information on the related claims an employee may make if a request for flexible working is refused.

Note that claims relating to the refusal of the request for flexible working must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given, or the date of any procedural breach by the employer. If the claim is simply for failure to honour the flexible working provisions, then an employment tribunal can:

  • order reconsideration of the decision
  • award such compensation as it considers just and equitable up to a maximum of eight weeks' pay, capped at the statutory maximum (see Statutory rates and compensation limits page).

As an alternative to tribunal proceedings, an employee may bring a flexible working dispute before the Acas arbitration scheme. The scheme is separate to Acas early conciliation and only covers flexible working and unfair dismissal claims. For further information, see our Tribunal claims, settlement and compromise Q&As.

Time limits for claims

Claims relating to the refusal of a request for flexible working must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given, or the date of any procedural breach by the employer.

Extensions of time now apply to claims which are referred to Acas under the early conciliation scheme so that essentially the time limit is increased by one month.

Other extensions may be possible but only if the tribunal is persuaded that it was not possible to comply with the initial time limit. For more information on early conciliation see our Tribunal claims, settlement and compromise Q&As.

If an employee does not qualify for the statutory right to request flexible working, can the employer just ignore the request? There is no risk of a flexible working claim if the employee does not qualify, however there may be other risks.

A female employee unable to undertake caring responsibilities because of a refused flexible working request could bring an indirect sex discrimination claim under the Equality Act 2010, for example, on the grounds that women are more likely than men to have primary childcare responsibilities so fewer women can comply with the requirement to work full time. A request for flexible working may be made by an employee with a disability and, in such circumstances, employers must remember their duty to make reasonable adjustments under the Equality Act 2010, otherwise a disability discrimination claim may result.

It is, therefore, advisable for employers to take all requests for flexible working seriously, even from employees who do not qualify for the usual ‘right to request’ procedure.
In these situations, the organisation may consider a flexible working request voluntarily and it may be good practice to do so, as otherwise the employee may be even more likely to pursue a discrimination claim if a request is dismissed out of hand. Employers can choose to consider a request for flexible working arrangements from any of their workers even those who are not ‘employees’ or who have less than 26 weeks’ continuous employment.

The following unreported case highlights how indirect sex discrimination claims can arise when flexible working requests are rejected and shows how the compensation for flexible working relates to compensation for discrimination claims.

The case, which was reported in the press, involved a record manager, Luisa Berg, and the Notting Hill Music Group. Her requests for part-time or flexible hours following maternity leave were not taken seriously; she was also lied to about a bonus paid to other staff in her absence. She left and claimed compensation for direct and indirect sex discrimination, failure to consider her request for flexible working hours and failure to provide a written contract of employment. 

It is reported she was awarded £16,000 for injury to feelings as part of her discrimination compensation, £5,542 for lost earnings, £1,000 for the concealed bonus, £1,600 for failure to provide a written contract of employment, plus the maximum £2,800 for failure to consider her flexible working request.

Employers can consider a request for time off for training from any of their workers but a right to make a specific formal request for time off for training which is governed by legislation came into force on 6 April 2010 for those employees in businesses with 250 or more employees. 

Qualifying employees have the legal right to make an application to their employer in relation to study or training (or both). The proposed study or training does not have to lead to a qualification but should improve an employee’s effectiveness at work and the performance of the employer’s business. The right closely follows the flexible working request model.

As with requests for flexible working, the right is to formally request time to train, rather than a right to enforce time off. Employers must consider the requests properly. Refusing a request can lead to claims for breach of the legislation or, potentially, for discrimination.

To qualify for this right, all applicants must meet the following requirements which are very similar to flexible working requests. They must be:

  • an employee (for further details on determining employee status see our Employee status Q&As)
  • have worked for the employer continuously for at least 26 weeks by the application date
  • have not made another request during the past 12 months
  • not be an agency worker (unless returning from a period of parental leave)
  • not be a member of the armed forces as they are expressly excluded.

Some young people do not have the right to request time to train under these regulations. For example, those who are of compulsory school age, or already have a right to paid time off to study or train under the Employment Rights Act 1996 Section 63A and those children falling within the Education and Skills Act 2008 Part 1.

Employers can voluntarily consider informal requests for time off for training from any employees without following the procedure summarised below, including requests from those who are not eligible for the new right. If good training systems are already in place, these can still be used to request training. However, the procedure set out below will help if problems arise from any rejection of a request.
Key points to note about the right are as follows:

  • Employers should have put procedures in place or adapted existing procedures to ensure that they consider requests properly and comply with the time limits set out below.
  • The right is to request time in relation to training.
  • Employers may wish to provide a template for requests to be made on.
  • Employers can refuse requests if they can demonstrate a good business reason. For example, they do not agree that the training will help improve business performance.
  • Once a training method has been agreed (if any), employers may choose to pay the costs of the training, but they do not have to do so.

The formal procedure to follow for requests for time off for training is similar to that used for flexible working requests. The right only applies for those employees in businesses with 250 or more employees.

1. The employee makes a request for time off for training.

The employee will specify in writing (including email or letter) the subject matter of the proposed training or study and:

  • that the application is an application under the Employment Rights Act 1996 Section 63D
  • where and when the proposed training or study will occur
  • who would provide or supervise the training
  • any qualification it would lead to
  • how the employee thinks the proposed training or study would improve their effectiveness in the employer’s business performance
  • the date and method that the employee's last application (if any) was made
  • the application should also be dated.

If the request is valid, but the employer needs additional information, the employer should simply ask the employee.

If an employee's request does not include all of the necessary information, or they have submitted more than one request within a 12-month period, the employer may technically consider the request to be invalid.

It is good practice for the employer to explain this to the employee within 28 days. As the whole procedure is designed to encourage employers and employees to talk to one another (rather than making technical points), the employer may be well advised to co–operate with the employee to obtain the requisite information to enable the request to be considered.

2. Within 28 days of receiving a valid request the employer must either:

  • accept the request and inform the employee of that decision in writing or
  • meet the employee to discuss the application at a time and place being convenient to both.

Any agreement concluded with the employee at the meeting may be recorded in writing. The employee can take a 'companion' along. If companion cannot attend, then the employer must defer meeting to a new time within seven days of the original date.

3. Within 14 days of the meeting, the employer must provide written and dated notification of their decision.

Acceptance

If the request is accepted the employer must include the following details:

  • the subject of the study or training
  • where and when it will take place and over what period
  • who will provide or supervise the training
  • what qualification (if any) the training will lead to
  • whether the training time will be paid or unpaid and how the costs of the training will be met
  • whether the employee will work flexibly whilst undertaking the training.

If the acceptance involves changing the employee's working hours, then it must be confirmed that the employee agrees to a contractual variation and over what period.

Revised proposals - agreement

The outcome of the meeting may be that a different training method is more appropriate, or that the employee may attend part of a course they have requested, but not all of it. The employer should confirm the details of this and obtain written evidence of the employee's agreement.

4. Rejection

If the application is rejected, the notification must state which grounds for rejection apply (see the question below on factors that may be taken into account) with an explanation as to why those grounds apply and the appeal procedure and the date of the notice

5. Appeals

An employee must send a dated written notice of their appeal, setting out the grounds of appeal within 14 days of the date of rejection of their application.

There are no restrictions on the grounds for an appeal which may include disagreement concerning whether the business reason applies or some new information, for example, a way of covering the employee’s absence during their training.

6. Within 14 days of receiving the appeal, the parties must meet at a mutually convenient time and place for the appeal meeting and the employee can be accompanied by a companion again.

7. Within 14 days of the appeal meeting, the employer must give a written and dated appeal decision. An acceptance must include the information as set out at point 3. above. A rejection must contain the grounds and an explanation as to why the grounds apply.

The companion must be employed by the same employer as the applicant and the companion is entitled to paid time off work to attend the meeting. Employers can always choose to allow a companion who does not work for the same employer (for example, a family member) although they do not have to. The companion can address the meeting and confer with the employee but may not answer questions instead of the employee.

If an employer refuses a request, a further application can be made at a later date, but the employee must wait 12 months from the date on which their last application was made before making any further requests unless the employer agrees to voluntarily consider another request within a 12 month period.

Possible problems

Problems which may arise include the following:

  • Employers who refuse to pay should do so entirely consistently, otherwise discrimination claims may arise.
  • Difficulties may arise with following the procedure exactly. As with the flexible working procedure, the steps can be varied where the parties agree. The agreement must be recorded in writing by the employer, dated and sent to the employee. The employer should specify the varied time-limits and confirm the date when any extension ends.
  • Unresolved requests after the appeal process may cause emotive issues in the workplace. In such cases, the organisation's usual dispute resolution processes should be followed. This will normally entail attempts to resolve the problems informally, using the organisation's own grievance procedure and complying with the Acas Code of Practice on disciplinary and grievance procedures. If this fails, external third-party mediation or conciliation, provided by Acas, for example, may assist. If all other methods have failed, Acas may be able to offer its pre-claim conciliation service or the employee may feel that a complaint to an employment tribunal is necessary.
  • Employees may fail to attend meetings. If they do so more than once without reasonable cause, the employer can write confirming that the request is treated as withdrawn.
  • An employee can withdraw a request at any point before the employer has notified a decision. If this happens, it still counts as a request for the purposes of the 12-month prohibition on making another request.
  • If the agreed training is cancelled due to unforeseen circumstances or the employee failed to start the training, they can make a further request within 12 months unless this was due to their own conduct.

More information about the procedure is in The Employee Study and Training (Procedural Requirements) Regulations 2010.

Further guidance on employees' rights with regard to Training and study at work is available on the government website. 

From 6 April 2020, the rules governing written the particulars given to all employees and workers at the start of their employment or engagement changed so that employers now must state:

  • whether there is any training provided by the employer; and 
  • if there is any mandatory training that the worker is required to complete, and any other required training that the worker must pay for.

Time off for training during the Coronavirus pandemic creates some legal issues. For example, if employees were furloughed under the Coronavirus Job Retention Scheme (or placed on its eventual replacement, the Job Support Scheme) they may undertake training. If employees participate in any training courses while on these schemes, they must be paid at least the full National Living/Minimum Wage for the time spent training. If this exceeds the state grant, it must be subsidised by the employer.

For further details, see our Coronavirus FAQs.

An employer will only be able to refuse a request for time off for training if it can show that one of the following grounds applies:

  • the proposed study or training would not improve the employee's effectiveness in the business
  • the proposed study or training would not improve the performance of the business
  • inability to rearrange work among existing staff
  • burden of additional costs
  • detrimental effect on the ability to meet customer demand
  • inability to recruit additional staff
  • detrimental impact on quality or performance
  • insufficiency of work when the employee proposes to work
  • planned structural changes during the proposed study or training period.

The last seven grounds are the same as those relied upon by employers in refusing a request for flexible working.

In many cases the employer will accept the employee's proposals for training as set out in their request or propose different training to that proposed by the employee. Some employers may suggest different courses or training in-house rather than externally.

Potential claims

It is important to emphasise that employees cannot go to the employment tribunal because they disagree with the employers’ business grounds for rejecting the request.

An employment tribunal can examine the facts on which the business reason was based to see if they were correct. The tribunal cannot question the employer’s business reasons. In addition to a complaint based on a breach of the legislation, an employee may claim under the discrimination legislation as well if they believe they have been treated less favourably because of their sex, race, age, religion or one of the other protected characteristics.

An employee whose request is refused can make a number of claims including:

  • that the employer has failed to follow the proper procedure dealing with the request
  • that the application was rejected on the basis of incorrect facts
  • for unfair dismissal, if they have been dismissed or subjected to a detriment for exercising or proposing to exercise rights under the time off for training provisions (in most cases this will be automatically unfair)
  • that the refusal to allow the request amounts to discrimination on grounds of sex, race, religion or one of the other protected characteristics.

Time limits

Claims relating to an employer refusing a request must be made within three months of the 'relevant date', that is either the date on which the appeal decision was given or the date of any procedural breach by the employer.

This time limit is increased by a month to allow for Acas early conciliation. Other extensions may be possible but only if the tribunal is persuaded that it was not possible to comply with the initial time limit (for more information, see our Tribunal claims, settlement and compromise Q&As).

If the claim is simply for failure to honour the statutory provisions, then an employment tribunal can:

  • order reconsideration of the decision by following the procedure correctly
  • award such compensation as it considers just and equitable up to a maximum of eight weeks' pay, capped at the statutory maximum (for latest figures see Statutory rates and compensation limits page).
  • award up to two weeks' pay for failure to allow a companion to attend procedural meetings, also capped at the statutory maximum.

In addition, a part-time worker or an employee on a fixed-term contract may claim that they have been treated less favourably than a comparable full-time worker or permanent employee if their request is refused unless that treatment is justified by objective business grounds.

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