Topics

Overview

• Parents of children aged under 6, parents of disabled children aged under 18, and carers have a legal right to apply to work flexibly and their employers have a duty to consider such requests seriously.
• This is not a right to work flexibly but rather a right to 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.
• The right to request flexible working is to be extended to parents of children up to the age of 16 from April 2009.

Who can apply?

The person applying must satisfy the following conditions:

• He or she must be an employee (i.e. agency workers aren’t eligible).
• He or she must have a child under 6 (or a disabled child under 18) or be the carer of an adult (a spouse, partner, civil partner, relative or another adult in need of care who lives at the same address).
• He or she must 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).
• He or she must be making the application in order to be able to care for the child or adult.
• He or she must have worked for their employer for 26 weeks continuously at the date that the application is made.
• He or she must not have made another application to work flexibly under the right during the previous 12 months.

How must the application be made?

• 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
  • confirm the employee’s relationship to the child
  • 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 - this may take 12–14 weeks
  • 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 he or she has NO automatic right to change back to their previous pattern of work, unless the application seeks the variation for a specified time period only. A trial period may be agreed.

How must the employer respond?

• 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.

On what grounds can an application be refused?

• Applications for flexible working arrangements can be refused only for the following reasons:
  • 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
• Its not enough simply to state one of the above reasons without being able to point to solid evidence that such is the case.

What are the penalties for getting it wrong?

• 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 (currently it's £330 per week).
• If a complaint of refusal to allow the employee to be accompanied is upheld, a tribunal can award 2 weeks’ pay in compensation.
• In case employers are tempted to think that ‘these penalties aren’t much’, think again. 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. If successful, the award of compensation is unlimited for the sex discrimination claim.

Tips for employers

• Don’t ignore any request to work flexibly – you have a legal duty to seriously consider the application.
• Follow the procedures to the letter. Failure to follow the correct procedures, including holding a meeting with the employee within 28 days of the application to explore the proposal in depth, can alone result in the employee receiving up to eight weeks’ pay. Also, failure to allow the worker to be accompanied at the meeting can result in a further award of up to 2 weeks’ pay.
• Consider using the specimen forms provided by the Department for Business, Enterprise and Regulatory Reform on its website.
• Only decline an application if you can really demonstrate that one of the specified business grounds for refusal applies.
• Consult with staff to agree a policy clarifying procedures for requesting flexible working.
• Use approved standard template documents for each stage of the process, from application, acceptance or decline, through to appeal, reply to appeal and notice of withdrawal.
• If a request is refused, and the employee goes to tribunal, make sure that the reason you give to the tribunal for rejecting the request actually matches the reason you gave to the employee at the time.
• Keep copies of all relevant documents on file.
• Seek professional help if you are in any doubt.