Doing the splits on Tuesdays

So I said to the gym instructor: ‘Can you teach me to do the splits?’ He said: ‘How flexible are you?’ I said: ‘I can’t make Tuesdays.’

(Tim Vine)

Do you sometimes wish your job allowed you to do something else on Tuesdays?  Well, maybe you can, or at least ask if you can.

Since 30 June employees have had the right to ask to work flexibly. This could mean changing the hours you work or where you work (working from home for one day a week for instance). The change may be permanent or temporary.  Certain rules apply to an application for flexible working (which is known as a statutory request).  The most important aspect of the new rules is that it establishes a statutory right to ask for flexible working.

Unfortunately, it’s possible that if you try to ask for flexible working your employer may try to punish you or treat you less favourably just because you have asked. This is called suffering a detriment. You mustn’t suffer any detriment because you have changed or sought to change (or have brought proceedings as a result of trying to change) to a flexible working pattern.

If you are dismissed because you sought to change (or have brought proceedings as a result of trying to change) your working arrangements, you shall be treated as having been automatically unfairly dismissed, because you have been dismissed for trying to assert a statutory right. Your employer will not be able to claim it was reasonable to dismiss you.

You can only make a statutory request if you are an employee who has worked for your employer for at least 26 weeks when you make your application.  You cannot make a statutory application if you:

  • are a member of the armed forces
  • are an agency worker, (except agency workers who are returning from parental leave)
  • have asked for flexible working within the previous twelve months, whether your request was agreed to or not
  • are an employee shareholder, unless you have returned from parental leave in the last 14 days.

You may want to consider applying for flexible working for a number of reasons.  There may be certain tasks which you could do more efficiently if you could work away from your workplace (where you may be interrupted) or you may work better in the mornings, possibly as a result of a disability.

A statutory application for flexible working must:

–      be dated and in writing

–      state that it is a statutory request for flexible working

–      set out the working pattern you are asking for and the date on which you would like it to start

–      explain how the proposed change would affect your employer and colleagues and how you think any changes might be dealt with

–      state whether you have made a previous application for flexible working to your employer, and if so, when

–      say why you are making a request (if it is because your current working arrangements put you at a disadvantage as a result of your age, sex, race, disability, religion or belief, or sexual orientation your employer may realise that it would be discriminatory to refuse your request. However, you don’t have to say why you are making a request if you don’t want your employer to know.

If your employer refuses your request, you can ask for arbitration or take your case to an Employment Tribunal.  The Tribunal will only be able to consider whether your employer followed the correct procedures and not the merits of your case to change your working arrangement, for example,

  • no decision was made within three months or the reason given for the refusal is not one of those permitted under the Employment Rights Act 1996; or
  • rejecting your application on the basis of incorrect facts
  • treating your request as withdrawn when they weren’t entitled to do so
  • claiming you have suffered a detriment or been unfairly dismissed because you asked for flexible working or because you made a claim to the employment tribunal in relation to a flexible working request.



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