Flexible working – formal scheme

Many flexible working arrangements are agreed informally between individuals and line managers.  There is also a formal scheme which is explained below

SUMMARY

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Under the provisions of the Flexible Working Regulations 2014 (as set out in Section 9 of the Children and Families Act 2014), any employee with 26 weeks service has the right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly.

Any eligible University employee can apply to work flexibly for any reason under the University's Flexible Working procedure. To be eligible to make a request for flexible working an individual must:

  • Be an employee ie not an agency worker
  • Have worked for the University continuously for 26 weeks at the date at which the application is made
  • Not have made another application to work flexibly during the previous 12 months.

Eligible employees are entitled to make an application to work flexibly and have the right to be accompanied at the meeting, at which their application is considered, by a trade union representative or by a friend or colleague from within the University.

The Flexible Working Regulations 2014 require that the consideration process should be completed within three months of first receiving the flexible working request, including the appeal stage, unless the department and the employee have agreed to an extension.

The following time scales are suggested for each stage of the process:

Stage in process Normal time scale
Arranging a meeting to discuss the employee's application 28 days
Notifying the employee of the department's decision regarding the application 14 days
Arranging a meeting to discuss the employee's appeal 14 days
Notifying the employee of the department's decision regarding the appeal 14 days

 

The department and the employee may agree to extend time scales for any part of the procedure; any such agreement should be recorded in writing by the department, be dated, specify what time scale the extension relates to, and specify the date on which the extension is to end. This record of agreement must be provided to the employee.

You should ask your employee to confirm that he or she has received notification of any extension to time scale.

It is important, in order that the University's procedures can be seen to be fair, that departments properly follow the procedure for dealing with an employee's request for flexible working.

It is strongly recommended that departments should start by taking a positive approach towards a request for flexible working. However, it is recognised that, due to the operational needs of the department, you may feel unable to accept a particular request. Employees are also encouraged to be flexible in their approach to requests and are asked to consider alternative working arrangements that may be appropriate if their first-choice flexibility option is not possible.

If the application for flexible working involves a reduction in hours and the employee has a certificate of sponsorship, they should seek advice from the Staff Immigration Team since a reduction in hours and salary would be reportable and there may be issues if the salary dropped below the level required by the Home Office.

If a department receives more than one request for flexible working, it is not required by law to make a value judgement regarding the purpose of these requests, or to establish the most deserving case between them. Employees are not obliged to tell the department the reason for their requests.

In coming to its decision, the department should take care not to discriminate on any of the protected characteristics detailed in the Equality Act 2010. It should seek to balance the individuals’ needs with the operational needs of the department and it should establish a legitimate business reason for any refusal. This should be based on the 8 statutory business reasons for refusal, given in Step 3 of the University's formal flexible working procedure, and demonstrate that the refusal is proportionate in the light of this business reason.

If the department cannot decide between requests according to business reasons, some form of random selection should be used to distinguish between the requests.

An employee will have the right to be accompanied at a meeting or an appeal meeting by a trade union representative (if a member) or by a friend or colleague from within the University. A person who accompanies an employee at a meeting or an appeal meeting concerning a request for flexible working will have the right to paid time off for this purpose.

STEP BY STEP

Flexible working applications procedure

A step-by-step guide for managers on dealing with applications for flexible working arrangements

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When the application form is received from your employee, you should acknowledge its receipt. A confirmation of receipt pro forma letter is appended to the Flexible working application.

Within 28 days of the date on which the request was made a meeting must take place between the employee and the departmental administrator, or their nominee (or the specified divisional representative in the case of academic staff) to discuss the request for flexible working. In order to be able to demonstrate that the timetable is being adhered to, it is recommended that administrators keep a full written record.

The department and employee may agree to extend the time scale for responding to the request, for example where the individual who would ordinarily consider the employee's request for flexible working is absent, on annual leave or on sick leave at the time that the request is received. The meeting should provide an opportunity for the department and the employee to examine the flexible working arrangement requested by the employee and to discuss how the department might accommodate the arrangement. Other possible flexible working arrangements should be examined if it is likely that the department cannot accommodate the flexible working arrangement requested by the employee.

Please note that:

  • The time and place of the meeting must be convenient to the departmental representative and the employee and their representative (where appropriate)
  • You are advised to keep a written record of this meeting.

The department's decision on the employee's request for flexible working must be given to that employee within 14 days of the date of the meeting. The department's decision must be given in writing, and dated. There are acceptance and rejection forms for this purpose. However, if you prefer, you may send this information in the form of a letter.

The department and employee may agree to extend the 14-day time scale because, for example, the department requires more time to examine the requested flexible working arrangement. In such a case, the extension should be conveyed to the employee concerned in writing.

  1. Agreeing requests

Except where the timescale has formally extended, an employee should be notified of the outcome of their application within 14 days of the meeting.

There is a pro-forma application acceptance form (form FW(B)) which can be used, or, if you prefer, you may write a letter. Whatever confirmation is sent it should include a description of the new working pattern and state the date when the new working pattern will become effective.

Depending on the nature of the change, a change in working pattern may require a contract amendment to be issued.  If you need advice on this, contact your HR Business Partner.

Any changes should be made to the CoreHR system and Payroll should be notified of any changes to working hours which require a salary adjustment, using the Payroll and Contractual Change form.

  1. Trial period

If you are uncertain about the impact that a request for flexible working will have on the department, you may wish to allow the employee to work under the requested flexible working arrangement for a trial period to determine in practice whether that arrangement could be successfully implemented.

For example, if a part-time working arrangement is having an adverse effect on the department during a trial period you will be in a better position to demonstrate this to the employee concerned.

Remember you can always extend the time limit if you wish to accommodate a trial period. If you decide to do this, the agreement must:

  • be recorded in writing by the department
  • be dated
  • specify what time limit the extension relates to, and
  • specify the date on which the extension is to end.

You should also clearly spell out:

  • that your agreement to the employee's request for flexible working is subject to the outcome of the trial period
  • the length of the trial period (when the period starts and when it ends)
  • that the change to the employee's terms and conditions of employment during the trial period is a temporary change only
  • the exact nature of the temporary changes to the employee's terms and conditions of employment during the trial period (eg a change in working hours), and
  • the date on which the employee will revert to his or her previous terms and conditions of employment if, after the trial period, the department rejects his or her request for flexible working.

If you decide to reject the request for flexible working following the trial period, you should ensure that you give your employee sufficient time to re-adjust to their previous terms and conditions of employment. For example, the employee should be given sufficient time to make alternative care arrangements or reorganise their other activities. In effect this could, by agreement, extend the length of the trial period.

If the department agrees with the employee's request for flexible working following a trial period, you must also specify the flexible working arrangement and any contractual variation that has been agreed to and the date that the arrangement and, where appropriate, the contractual variation will begin.

  1. Refusing requests

If the department refuses the employee's request for flexible working either with or without a trial period, you must state the operational grounds for that refusal and provide a sufficient explanation as to why those grounds for refusal apply in relation to the request.

Please note that the Flexible Working Regulations 2014 specify that an employer can only refuse a request for flexible working on one or more of the statutory grounds listed below:

  • the burden of additional costs,
  • a detrimental effect on ability to meet customer demand,
  • an inability to re-organise work among existing staff,
  • an inability to recruit additional staff,
  • a detrimental impact on quality,
  • a detrimental impact on performance,
  • insufficiency of work during the periods the employee proposes to work,
  • planned structural changes.

It is important that you think about the operational reasons listed above in relation to the operating practice of your department. If you are not able to accommodate the suggested working pattern, you should be willing to think about other options which may be acceptable to the department and employee and to negotiate these with the employee.

If you do have to refuse the employee's request for flexible working, you should at the same time notify the employee of the appeal procedure.

An employee whose request for flexible working has been refused by the department has the right to appeal against the decision normally within 14 days after the date on which they were notified of that decision.

The employee's notice of appeal must be given in writing, set out the grounds of their appeal, and be dated.

The department and employee may agree to extend the 14-day limit.

  1. The appeal meeting

An appeal meeting should take place between the employee and the department to discuss the appeal within 14 days of the date on which the employee gives notice of appeal. Ideally, if the request was originally considered by the departmental administrator, an appeal should be heard by the Head of Department, or their nominee. The time and place of the appeal meeting must be convenient to the Head of Department (or the nominee) and to the employee and their representative (where appropriate).

You are advised to keep a written record of this meeting.

The department and employee may agree to extend the 14-day time limit.

  1. Making a decision

The department's decision on the appeal must be given to the employee within 14 days after the date of the appeal meeting; it must be given in writing and dated. The department and employee may agree to extend the 14-day time limit because, for example, the department requires more time to examine the requested flexible working arrangement.

If you uphold the appeal, you must also specify the flexible working arrangement and the contractual variation, and the date from which the arrangement and contractual variation will begin.

If you dismiss the appeal you must set out the grounds for your decision and sufficiently explain why those grounds apply (see step 3).

The outcome of the appeal should be notified to the employee within three months of first receiving the flexible working request, unless the employee and the department have agreed to extend the timescale.

CHECKLIST FOR DEPARTMENTS

This checklist should be used as a guide to ensure that all aspects of an employee's application to change their working pattern have been taken into consideration:

Initial application

  • When you receive notification that a member of staff wishes to apply for flexible working (on the flexible working application form), check that you are satisfied that it contains all the relevant information.
  • Ensure that you have acknowledged receipt of the request. This may be done by using the short pro forma letter at the end of the flexible working application form.
  • Arrange a meeting to discuss the application within 28 days of receipt of the application form. The employee has the right to be accompanied at this meeting by a trade union representative (if a member) or by a friend or colleague from within the University.
  • Ensure that you have given full and serious consideration to the request, taking into account any implications that agreeing to the request may have on service delivery and the means, if any, by which these may be overcome. It is a requirement of the statutory regulations that an employer gives serious consideration to requests for more flexible working patterns.
  • If you consider that there may be problems with the proposed arrangement for flexible working, you must also explore other possibilities for alternative working patterns with the employee. It is also a requirement that alternative arrangements receive consideration.

If the application is successful

  • Ensure that you notify the employee of your decision within 14 days of the meeting. You may use the application acceptance form for this purpose, or, if you prefer, you may write a letter.
  • Ensure that the notification includes a description of the new working pattern and that it states the date when the new working pattern will become effective.
  • A change in working pattern may require a change of contract. If you need advice on this, contact your HR Business Partner.
  • Ensure that you have notified payroll of any changes to working hours so that salary can be adjusted.

Use the Payroll and Contractual Change form to notify payroll of any changes.

If the application is unsuccessful

  • Ensure that you notify the employee within 14 days of the meeting. You may use the Application rejection form for this purpose or, if you prefer, you may write a letter.
  • Ensure that this notification states the operational reasons for refusal, provides sufficient explanation as to why they apply in these circumstances, and that it provides details of the employee’s right to appeal.

If the applicant decides to appeal

  • Check that any appeal has been acknowledged within the required 14 day timescale (unless an extended timescale has been agreed in advance).
  • Ensure that you have arranged an appeal hearing within 14 days of receiving the employee's appeal. It is important that the appeal provides an independent review. This should normally involve a more senior member of staff than the person who initially rejected the application.
  • You should notify the applicant of the outcome of this appeal within 14 days of the hearing, applying the same process that you applied to notification for the initial application.
 
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