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Informal/pre-existing flexitime/banked hours scheme

Sharon Long

some of the team have been running a flexi-time/banked hours scheme without their current manager knowing. It was approved by a former manager over 3 years ago and not communicated during handover. The team are never asked to work over and above their hours but chose to do so and then bank their hours for a Friday pm for example.

We have a separate TOIL policy and if they are asked to do an event in an evening or weekend, then they can claim Toil.  This is followed by the whole business, but the flexitime scheme is used by 3 members of staff, the current manager doesn't sign off flexi-time and it is not one of our policies.

The manager now wants to stop the scheme as there is no business need for it, would custom and practice come into this as a former manager informally agreed it.  There is no written approval.

If so, I presume we would need to consult (the contracts give the right to change terms).

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  • I’d probably check the facts a little further before assuming this is either contractual or something you can simply withdraw.

    Three years of the arrangement could potentially support an argument around custom and practice, but the key question is whether it was actually treated as an established entitlement by the employer, rather than just something a former manager allowed.

    I’d look at how consistently it has been used, whether management knew about it, and whether there is anything in emails, timesheets or other records showing it was approved.

    I’d also want to look closely at the variation clause in the contracts. Even where there is a right to vary terms, that doesn't necessarily mean the employer can use it without considering how the arrangement has operated in practice.

    Given it has been running for three years, I’d speak to the three employees before stopping it. Explain the business reason, give reasonable notice and consider whether the arrangement can be brought within the existing TOIL/flexible-working framework.

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  • I’d probably check the facts a little further before assuming this is either contractual or something you can simply withdraw.

    Three years of the arrangement could potentially support an argument around custom and practice, but the key question is whether it was actually treated as an established entitlement by the employer, rather than just something a former manager allowed.

    I’d look at how consistently it has been used, whether management knew about it, and whether there is anything in emails, timesheets or other records showing it was approved.

    I’d also want to look closely at the variation clause in the contracts. Even where there is a right to vary terms, that doesn't necessarily mean the employer can use it without considering how the arrangement has operated in practice.

    Given it has been running for three years, I’d speak to the three employees before stopping it. Explain the business reason, give reasonable notice and consider whether the arrangement can be brought within the existing TOIL/flexible-working framework.

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