Wilson Nesbitt - Solicitors

Article by Lyn Harris
Head of the Employment law department of Wilson Nesbitt


The law in Northern Ireland now requires that employers must consider requests from staff to work flexibly.  It is inevitably smaller employers which face more of a challenge in seeking to accommodate requests to work flexibly and this can cause particular difficulty for employers in the retail industry. Flexible working requests can relate to a change in working hours, shift patterns and home working amongst other working arrangements.

The law does recognise that an employer may have entirely legitimate business reasons why it cannot accommodate a flexible working request. There are specific grounds for rejecting a request however an employer should give very serious consideration to each request on an individual basis as refusal to grant a request can lead to a complaint being made to an Industrial Tribunal. Employers should also be careful not to fall foul of the Fair Employment legislation and ensure that they are not exposed to discrimination claims in respect of for example, sex or disability. If in doubt legal advice should always be sought.

The law on flexible working states that in order to make a request an employee must:

•    Have 26 weeks' continuous employment at the date the application is made;

•    Not have made another application to work flexibly during the preceding twelve months;

•    Be making the request in relation to a child under 17 years old (or 18 years old if the child is disabled);

•    Be either the child's parent, adoptive parent, guardian or foster parent or holder of a residence order ; or

•    The spouse, civil partner or partner of the child's mother, father, adopter, guardian or foster parent;

•    Have or expect to have responsibility for the child's upbringing and be making the application in order to care for the child.

•    Be or expect to be caring for an adult who is in need of care and who is a spouse, civil partner or partner or relative of the employee; or who lives at the same address. 


Unless an employer can agree to the request without further consideration then the statutory procedure should be followed. The employee submits a written application . Within 28 days of receiving the request, the employer  meets with the employee to discuss the application. The employee is entitled to be accompanied by a work colleague. Within 14 days after the date of the meeting, the employer must write to the employee to either agree to the new work pattern and set a start date, or to provide grounds for the rejection of the application and set out the appeal procedure. The employee can appeal the rejection of a request within 14 days . Within 14 days of receiving the appeal notice the employer must arrange a further meeting to discuss the grounds of appeal. Within a further 14 days the employer must deliver the appeal decision.

If the procedure does result in a new work pattern being introduced the employer should issue a new contract setting out the terms as finally agreed. The new work pattern will be a contractual variation to the employee's employment and will be permanent, unless a further variation is mutually agreed.

It is interesting to note that a recent report*  has provided evidence that most employers in Northern Ireland believe that employees should be able to achieve a satisfactory work/life balance, and that the provision of flexible working arrangements either has no negative impacts on their businesses or that it delivers positive benefits, such as increased employee motivation, commitment and productivity, less absenteeism and better employee relations.

*Report on Flexible Working Patterns: Comparison of Employee and Employer Surveys conducted in 2003 and 2006 (Department of Employment and Learning, 2007  )