The right to request flexible working
Sections 66, 99-102 and 122 of the Employment Act 2006 and the Flexible Working Regulations 2020 give all employees, (not just parents and carers) the right to request flexible working. It doesn’t matter how long the employees have been employed.
A request may not be made within 12 months of a previous request.
An 'employee' for this purpose does not include an agency worker.
An employee can request:
- a change in working hours;
- a change to the times when he or she is required to work;
- to work from home or the employer’s place of business.
If a request is accepted, it will lead to a permanent change in the employee's terms and conditions of employment.
A request must be made in writing and state:
- that it is an application for a change in the terms and conditions of employment;
- the change requested and the date when it is proposed it should take effect;
- what effect the employee thinks the change will have on the employer and how, in the employee’s opinion, that effect might be dealt with;
- whether the employee has previously made such a request to the employer and, if so, when; and
- the date of the application.
The employer must deal with the application in a reasonable manner and notify the employee within a standard period of three months (which can be extended by agreement), including any appeal that the employer allows.
The employer can treat an application as withdrawn if the employee misses two meetings to discuss an application or appeal without good reason, (for example sickness). The employer must tell the employee they are treating the request as withdrawn.
The employer may refuse a request only on one or more of the following grounds:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to re-organise work among existing staff, or to recruit additional staff;
- detrimental impact on quality or performance;
- insufficient work at the time the employee proposes to work; and
- planned structural changes.
Except where the request is disposed of by agreement or withdrawn, the employee may make a complaint to the Employment and Equality Tribunal that:
- the employer didn’t deal with the application in a reasonable manner;
- the employer didn’t notify the employee within the decision period;
- the employer refused the application on a non-permissible ground;
- the employer’s decision was based on incorrect facts;
- the employer wrongly treated the employee’s application as withdrawn.
But an employee cannot complain to the Tribunal just because their flexible working request was rejected.
A complaint may not be made:
- where the application has been dealt with by agreement or withdrawn;
- where the employer hasn’t notified the employee of the decision;
- in the case where the decision period has expired and the employee hasn’t been notified, before the end of that period;
- where an employer has allowed an appeal, before the decision on the final appeal; or
- where the employer and employee have agreed to extend the decision period, before the end of the extended period.
A complaint to the Tribunal must be made within 3 months of the relevant failure of the employer but the Tribunal can allow a complaint which is out of time if there was a good reason for the delay.
Where the complaint is successful the Tribunal makes a declaration, and may order the employer to reconsider the request and award compensation of up to 8 weeks' pay.
Detriment and dismissal for exercising the right
The employee has a right not to suffer detriment (for example, being refused a promotion or pay rise) for seeking flexible working, bringing Tribunal proceedings, or alleging a ground for bringing proceedings.
Where the complaint is successful the Tribunal makes a declaration, and may award compensation of an amount which the Tribunal considers just and equitable, having regard to the employer's infringement and the employee's loss. The maximum amount of compensation that can be awarded to an employee who has suffered a detriment is the sum of the basic award and the compensatory award that could be awarded on a finding of unfair dismissal.
If an employee is dismissed for seeking flexible working this is dealt with under the unfair dismissal provisions of the Employment Act 2006. Dismissal for such a reason is automatically unfair.
Relationship with the protected characteristic of sex in the Equality Act 2017
The right to request flexible working does not alter sex discrimination law under which, for example, a refusal to allow a woman returning to work after maternity leave to work flexibly may constitute indirect sex discrimination.
The Manx Industrial Relations Service (MIRS) can advise both employees and workers about the right. Contact details of MIRS are as follows –
Manx Industrial Relations Service
Isle of Man