Flexible Working Requests

The right to request flexible working is established under section 6AA of the Employment Relations Act 2000. This right applies to most employees who have completed at least six months of continuous employment with their current employer, regardless of whether they work full-time, part-time, on fixed-term contracts, or in casual arrangements.

Flexible working can take many forms, including changes to hours of work, days of work, or place of work. Common arrangements include working from home, compressed work weeks, job sharing, flexible start and finish times, or reduced hours. The key is that any arrangement that differs from your current working pattern could potentially be considered flexible working.

It's important to understand that having the right to request doesn't guarantee approval. The legislation creates a process that employers must follow, but they retain the ability to refuse requests on legitimate business grounds. The emphasis is on ensuring fair consideration rather than automatic acceptance.

Employees can only make one flexible working request every 12 months, so it's crucial to prepare your request carefully and consider all aspects of your proposed arrangement before submitting it.

A well-prepared flexible working request significantly increases your chances of success. Your request should be made in writing and include specific details about the arrangement you're seeking, when you'd like it to start, and how long you want the arrangement to last. Be clear about whether you're seeking a permanent change or a temporary arrangement.

Consider the potential impact on your employer's business and address these concerns proactively in your request. Explain how your proposed arrangement could work in practice, how it might affect your colleagues, and suggest solutions to any potential problems. Demonstrating that you've thought through the practical implications shows good faith and professionalism.

Include information about your reasons for requesting flexible working, though you're not legally required to provide detailed personal information. Whether your request is for childcare, study, health reasons, or simply personal preference, briefly explaining your motivation can help your employer understand the importance of the request to you.

Consider proposing a trial period for your flexible working arrangement. This can address employer concerns about the unknown impact of the change and provides an opportunity to demonstrate that the arrangement works effectively for both parties.

Employers have clear legal obligations when handling flexible working requests. The most fundamental requirement is to consider each request in good faith, which means giving genuine and reasonable consideration to the request and the employee's circumstances. This isn't just a box-ticking exercise - employers must actively engage with the request and explore whether it can be accommodated.

The consideration process should involve meeting with the employee to discuss the request, unless both parties agree this isn't necessary. During this discussion, employers should explore the practical implications of the proposed arrangement, consider potential solutions to any problems, and discuss alternative arrangements if the original request can't be accommodated exactly as proposed.

Employers must respond to flexible working requests within three months of receiving them. This timeframe includes the entire process from initial consideration through to final decision, including any meetings, discussions, or appeals. The three-month period can only be extended by mutual agreement between the employer and employee.

If an employer decides to refuse a request, they must provide written reasons for the refusal. These reasons must be based on one or more of the statutory grounds for refusal and must be genuine business reasons rather than personal preferences or assumptions about the employee's capabilities.

The Employment Relations Act specifies eight grounds on which employers can refuse flexible working requests. These grounds are designed to protect legitimate business interests while preventing arbitrary refusals. The grounds include inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality or performance, detrimental impact on ability to meet customer demand, insufficient work during proposed working periods, planned structural changes, burden of additional costs, and detrimental effect on ability to compete.

For a refusal to be valid, employers must demonstrate that one or more of these grounds genuinely applies to the specific request. It's not enough to simply cite one of the grounds - employers must show how the proposed flexible working arrangement would actually create the problems they're claiming.

Common mistakes employers make include refusing requests based on assumptions rather than evidence, failing to consider whether problems could be solved through reasonable adjustments, or applying blanket policies rather than considering each request individually. For example, assuming that working from home will reduce productivity without considering the individual employee's track record or the nature of their role.

Employers should also consider whether partial accommodation of a request might be possible if the full request can't be granted. The good faith obligation requires exploring alternatives and compromises rather than simply refusing the entire request.

If you believe your flexible working request has been unfairly refused, you may have grounds for a personal grievance under the Employment Relations Act. This could occur if your employer failed to follow proper procedures, refused your request without legitimate grounds, or didn't consider your request in good faith.

Before raising a formal grievance, consider whether the issues can be resolved through further discussion with your employer. Sometimes refusals are based on misunderstandings or concerns that can be addressed through additional information or modified proposals. Document these discussions carefully as they may be relevant if formal action becomes necessary.

If informal resolution isn't possible, you must raise your personal grievance within 90 days of the refusal or of becoming aware that the refusal was unjustified. The grievance process typically involves mediation first, where an independent mediator helps both parties try to reach a resolution.

Successful challenges to flexible working refusals can result in various remedies, including orders requiring the employer to reconsider the request properly, compensation for lost wages or other financial losses, and compensation for humiliation, loss of dignity, and injury to feelings. In some cases, the Employment Relations Authority may order that the flexible working arrangement be implemented.

Once a flexible working request is approved, both employers and employees need to work together to ensure the arrangement is implemented successfully. This typically involves updating the employment agreement to reflect the new working arrangements, establishing clear expectations about performance and communication, and setting up any necessary technology or equipment.

It's important to document the agreed arrangement clearly, including specific details about working hours, location, communication requirements, and how performance will be measured. This documentation helps prevent misunderstandings and provides a reference point if issues arise later.

Regular review meetings can help ensure the arrangement is working well for both parties. These reviews provide opportunities to address any problems early, make adjustments if necessary, and confirm that the arrangement continues to meet both business needs and employee requirements.

Both parties should maintain flexibility and good faith in making the arrangement work. This might involve adjusting the arrangement if circumstances change, being responsive to communication needs, and working collaboratively to solve any problems that arise.

Many flexible working disputes arise from preventable misunderstandings and procedural failures. One common pitfall is employers making assumptions about the impact of flexible working without properly investigating or consulting with the employee. For example, assuming that reduced hours will proportionally reduce productivity without considering whether the employee might work more efficiently in their preferred arrangement.

Another frequent issue is inadequate communication during the consideration process. Employers who fail to meet with employees to discuss their requests, or who don't explain their concerns clearly, often find themselves facing grievance claims that could have been avoided through better dialogue.

Employees sometimes contribute to disputes by making unrealistic requests without considering business impacts, or by not providing enough detail about how their proposed arrangement would work in practice. Vague requests make it difficult for employers to assess feasibility and can lead to unnecessary refusals.

Timing can also create problems. Requests made during busy periods or major business changes may face additional scrutiny, while requests that don't allow adequate time for implementation may be refused on practical grounds. Understanding your workplace's operational cycles and planning your request accordingly can improve your chances of success.

Legal advice can be valuable at various stages of the flexible working process, not just when disputes arise. If you're planning to make a complex or potentially controversial request, early legal advice can help you structure your request effectively and anticipate potential employer concerns.

Employers should consider seeking legal advice when they're unsure whether they have legitimate grounds to refuse a request, when they're dealing with multiple related requests that might set precedents, or when they're concerned about the broader implications of approving or refusing particular arrangements.

If your flexible working request has been refused and you're considering challenging the decision, legal advice is essential to assess the strength of your case and understand your options. Employment lawyers can review the process your employer followed, evaluate whether the grounds for refusal are legitimate, and advise on the prospects of success in formal proceedings.

Legal advice becomes particularly important when flexible working disputes intersect with other employment issues, such as discrimination, workplace bullying, or performance management. These complex situations require careful analysis to identify all relevant legal issues and develop appropriate strategies.