Flexible working

Topic Index
Overview
Eligibility
Form of the application
Employer's response
Grounds for refusing application
Reverting back
Penalties
Sex discrimination
Implementing a flexible working policy
Resources

Overview

Parents of children aged under 17 (and parents of disabled children aged under 18) and carers of certain adults have a legal right to apply to work flexibly and their employers have a duty to consider such requests seriously.
This is not an automatic right to work flexibly but rather it is a right to simply ask the employer to consider a request to work flexibly.
The application can cover hours of work, times of work, place of work (as between home and place of business only).
Parents and carers are legally protected from suffering any disadvantageous treatment because of trying to exercise this right.
Tribunals cannot order employers to implement flexible working arrangements.
There are plans to extend the right to request flexible working to all employees, see LawTracker.

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Eligibility

To be eligible to apply the person must:
- be an employee (i.e. agency workers are not eligible)
- have worked for their employer for 26 weeks continuously at the date that the application is made, and
- not have made another application to work flexibly during the previous 12 months
If the request is in relation to a child, the employee must also:
- have a child under 17 (or 18 if the child is disabled)
- have parental responsibility for the child (this includes biological parents, legal guardians, adoptive and foster parents and spouses of these, including same sex partners as long as they have parental responsibility for the child).
- be making the application in order to be able to care for the child
If the request is in relation to an adult, the employee must also:
- be or expect to be caring for an adult aged 18 or over who is in need of care
- be the adult's spouse, partner, civil partner or relative or living at the same address as the adult in need of care
- be making the application because the adult is in need of care
'Relative' is widely defined and means mother, father, adopter, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step relatives and half blood relatives are also included. An employee does not have to show that there is no closer relative who could provide the care. For example, an employee could request flexible working to look after a step-parent, even if the step-parent had their own children.
Caring' is not actually defined (because of the problems of defining exactly what it covers) and this makes it difficult for an employer to determine whether a request is genuinely made to allow an employee to ‘care’ for an adult. However government guidance indicates that a wide range of activities will count as ‘caring’, for example: help with mobility, or personal or nursing care; giving or supervising the taking of medication, or accompanying to hospital or doctor’s appointments; helping with household tasks (e.g. shopping, cooking or cleaning) or with financial matters or paperwork; providing emotional support or keeping the care recipient company.
An employee does not have to give details of the caring responsibilities and the law doesn’t specifically entitle an employer to ask for any. A solution might be to provide a form for staff to use if they want to make a request. This could include a question such as ‘We would be grateful if you would specify why you need to work flexibly to accommodate your caring responsibilities. Such information is not a prerequisite for your request to be considered but it would help us assess the merits of your application’. Although the employee is not obliged to answer such a question, any information given might help the employer assess the reason for the request.
If an employer suspects abuse of the right it could, if there is good evidence, invoke its disciplinary procedure. But remember that employees are legally protected from suffering a detriment because they’ve made an application - so employers should tread very carefully before taking disciplinary action, other than in cases of clear abuse.

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Form of the application

The application from the employee must:
- be made in writing and dated, and state that it is being made under the statutory right to apply for flexible working
- set out the employee’s proposal and explain what effect the employee thinks this will have on the employer’s business and how this may be dealt with
- specify a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it
- state whether a previous application has been made and if so the date on which it was made
If the employer approves an employee’s application, the variation in contractual terms is a permanent one and the employee has no automatic right to change back to their previous pattern of work.

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Employer's response

There are specified steps which an employer must take when faced with a flexible working request. It must:
- arrange a meeting with the employee within 28 days of receiving the application to discuss the request. This meeting is not required if the employer agrees to the terms of the application and notifies the employee accordingly within 28 days of receiving the application
- allow the employee, if he or she wants to, to be accompanied by a work colleague
- notify the employee of its decision within 14 days of the date of the meeting. This notification will either accept the request and set a start date and any other action; confirm a compromise agreed at the meeting or reject the request and set out clear business reasons for the rejection together with notification of the appeals process
- arrange to hear the employee’s appeal within 14 days of being informed of the employee’s decision to appeal (again the employee must be allowed to be accompanied by a work colleague if they so wish)
- notify the employee of the decision on the appeal within 14 days after the date of the meeting. The notification will either uphold the appeal; specify the agreed variation and start date; or dismiss the appeal, stating the grounds for the decision and containing a sufficient explanation of the refusal
The employer and the employee can agree to extend any of these time limits. The employer must record this agreement in writing, specifying the period to which the extension relates and the date on which the extension is to end. A copy of this record must be sent to the employee.

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Grounds for refusing application

An employer's reason for refusing an application must fall within one of the following categories:
- the burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to re-organise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes to work
- planned structural changes
It is not enough simply to state that one of the above reasons without actually being able to point to solid evidence that such is the case.

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Reverting back

If an employer agrees to change the employee's terms of employment in the manner requested by the employee, they are both then stuck with that change. There is no provision in law for the employee's contract to revert back to what it was before.
For example, if an employee applies for and is allowed flexible working to care for an elderly parent, and the parent dies soon after, then neither the employer or the employee will be able to require the other to revert to the pre-flexible working status quo.
To avoid difficulties on reverting back to previous terms it may sometimes be sensible for a specific agreement to revert to be agreed as part of some flexible working arrangements.

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Penalties

If a tribunal finds against the employer it may be ordered to reconsider the employee’s application for flexible working and may also be ordered to pay the employee compensation.
The amount of compensation will be what is ‘just and equitable’ given the circumstances of the case.
The maximum level of compensation is 8 weeks’ pay subject to the statutory limit on a weeks' pay, which is £400 (£430 from 1 February 2012).
If a complaint of refusal to allow the employee to be accompanied is upheld, a tribunal can award 2 weeks’ pay in compensation.
Employers tempted to think that ‘these penalties aren’t much’, should beware. The real danger comes when a woman who is refused a flexible working request then takes a tribunal claim and adds in an indirect sex discrimination claim.

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Sex discrimination

The right to make a flexible working request only applies to the specified categories, i.e. parents of children under 17 (or 18 if disabled) and those caring for adults – an employee is not entitled to ask for flexible working for any other reason.
But it might be potentially dangerous to ignore a request from an employee who does not qualify. He or she will be covered by protection against discrimination and refusing a request for flexible working could amount to indirect discrimination. For example, refusing a request from a male employee could give rise to a sex discrimination claim if requests from female employees have been dealt with differently.
Carefully consider a request from an employee who does not qualify under the law and, if it is refused, document the reasons for doing do so.
Remember that in a sex discrimination case there is no limit on the compensation that can be awarded. When training managers, employers are advised to highlight the overlap with discrimination rights and the potential cost of getting it wrong.

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Implementing a flexible working policy

Be open-minded about adopting flexible working arrangements.
Be aware whether any request from staff is a temporary or permanent agreement.
Explain the benefits of flexible working to line managers and ensure that they implement the policy fairly.
Involve staff in agreeing working patterns in line with the ebb and flow of business.
Estimate the cost of implementing flexible working - although this is unlikely to be substantial, it is important to recover the investment.
Establish benchmarks for recruitment, retention and absence, and measure the results regularly to establish the effect flexible working has had.
Ensure that recruiters emphasise the opportunities for flexible working to improve the recruitment process.
Review how flexible working operates to ensure that operations are not compromised, all staff have an equal opportunity to work flexibly, and that expected business improvements have materialised.

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