The Law on Flexible Working

3. Implementation Procedure

Under the law on flexible working, both sides are required to follow the correct procedure.

3.1 It is up to the employee to prepare a detailed application well in advance of when they want to change their working pattern.

• The application must be in writing and clearly state what the application is for and when it will be effective from.
• The employee should be able to come up with a clear plan of how the new pattern would work and must show that the changes will not harm your business.
• It must also explain how the employee feels he or she meets the relationship criteria.

3.2 It is good practice to acknowledge an application to work flexibly in writing. Once you have received an application from an employee you must:

• Arrange a meeting with the employee within 28 days of receiving it. This is to decide a start date (if you agree), or to consider alternatives (if you do not). The employee has the right to be accompanied at the meeting by a companion. The companion must be a worker also employed by you.
• If you agree, write to the employee within 14 days of the meeting detailing the new working pattern and confirming the start date.
• If you do not agree, you must write within the same time with business reasons why the proposed arrangement will not work. You must date your refusal and set out your appeals procedure.

3.3 You can refuse an application to work flexibly only if there is a clear business reason.

Valid reasons as set out in the legislation are:

• The burden of additional costs.
• A detrimental effect on the ability to meet customer demand.
• An inability to reorganise work among other employees.
• An inability to recruit additional employees.
• A detrimental effect on quality.
• A detrimental effect on performance.
• Insufficient work when the employee proposes to work.
• Planned structural changes.

3.4 If you refuse an application to work flexibly, the employee may appeal.

• He or she must write to do so within 14 days of you sending your letter of refusal.
• You must have another meeting within 14 days of receiving this letter to hear the appeal. And you must write, accepting or refusing the appeal, within 14 days of this meeting.

3.5 If you still refuse the application, and the employee feels that their application has not been considered seriously, they may want to take further steps.

• Try to deal with the problem internally at this stage. An informal discussion between you and the employee may clear up any misunderstandings. Or, encourage them to use a formal grievance procedure. It will also be much quicker than involving external parties.
• If it is still not possible to resolve the dispute, the employee may decide to involve an external third party. This might be someone from Acas or some other mediator or conciliator. They will try to resolve the problem in an informal manner by mediating discussions between you and the employee.

3.6 In some circumstances, the employee may decide to make a formal complaint to an employment tribunal or to the Acas arbitration scheme.

• The employee can only do this if you have failed to follow the correct procedures, if your decision was based on incorrect facts, or, perhaps, if the employee is caring for a disabled relative, and the employee claims the refusal amounts to disability discrimination.
• If it is shown that you have not followed the correct procedure, you will have to reconsider the application.
• You may also have to pay compensation to the employee. The amount payable will be decided by the employment tribunal or the Acas arbitrator and will be limited to a maximum of eight weeks' pay. Each week's pay itself is currently limited to £330. If a discrimination claim succeeds, compensation is not capped.

3.7 The timescales may be extended by mutual (written) agreement. If the employee fails to attend two or more meetings (without giving a reasonable explanation) then the employer may treat the application as withdrawn.