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Flexible Working Rights

» Posted on: 28 March 2008
» Posted by: Oliver McCann
» Service area: Employment

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The right to request flexible working was introduced in April 2003. Recently the legislation has been amended to extend the list of employees’ which are eligible to apply for flexible working and also to the circumstances which must exist to apply.

Firstly anyone can ask for flexible working but the statutory right to apply only applies to the employees if they:

  • have a child under six or a disabled child under 18
  • are responsible for the child as a parent/guardian/special guardian/foster parent/private foster carer or as the holder of a residence order
  • are the spouse, partner or civil partner of one of these and
  • are applying to care for the child

From 6 April 2007, the right was extended to a carer who cares, or expects to be caring, for adults such as a spouse, partner, civil partner or relative or any other adult who lives at the same address as the carer.

On 6th November 2007 the government indicated it intention to extend the above rights to parents of “older” children with suggestions that this will extend to 16 year olds.

Flexible working can include part time hours, flexi time, staggered hours, job share, shift swapping, time off in lieu, term time hours, home working and zero hour contracts.

An individual can only apply for flexible working once every 12 months. The employee must apply in writing and comply with other statutory requirements. There is a legal duty on employers’ to hold a meeting to discuss the request within 28 days of the request. The decision must be communicated by 14 days after the meeting and confirm whether the request is granted. If so it must confirm the new working pattern agreed, when it is to take effect and whether it is a permanent change, a temporary change or subject to a trial period.

If the application is to be refused it must state the business reasons for the refusal and why that reason applies in the particular circumstances and give the employee the right to appeal within 14 days of the decision.

The Business grounds for refusing a request are:

  • Burden of additional costs
  • Detrimental effect on ability to meet customer demand
  • Inability to reorganise 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

Where an employee’s application is refused at appeal the employee can complain to an Employment Tribunal that either the employer has failed to deal with the request properly or has rejected the request based on incorrect facts. Where upheld the Employment Tribunal can order the employer to reconsider the application and award compensation of up to 8 weeks pay. The tribunal cannot force the employer to implement the changes proposed however.

The repercussions for a refusal of a request for flexible working may not appear to be too onerous and, in some cases, employers may decide it is a risk worth taking. However there is a note of caution! A rejection, without justification, may also give rise to a claim for indirect sex discrimination. Invariably requests are made from female employee’s desperately trying to balance their family life with work.

If your refusal cannot be justified the chances are the employee would succeed in a claim for indirect sex discrimination on the grounds that the normal working pattern insisted on by the employer prevents more women from working for that employer than men. Note that sex discrimination law actually means that the right to request flexible working applies can apply to any female with child care responsibilities regardless of the age of the child.

Also, where women have been granted flexible working then men in similar circumstances may also attract the same right. A successful claim means compensation for lost earnings and injury to feelings which in some cases can be a substantial sum.

Like wise if an employee cannot comply with your “normal” working pattern due to caring for a disabled employee they too could now raise the argument that they are being discriminated against because of their association to a disabled person. Whilst case law is presently undecided on this point, expect it to succeed and for carers of disabled individuals to suddenly gain new rights.

If you accept an application consider whether or not by doing so you create any additional responsibilities towards the employee. For example, home working is becoming more popular but with this comes additional responsibility. Health and safety law extends to home workers as well which will mean an employer will have to visit the employee’s home to perform a risk assessment of the risks of working from home and take measures to reduce that risk.

For example, is the work station appropriate? Are the electrical items safe to use and regularly maintained etc. The HSE provides a guidance booklet on the health and safety of home workers which all employers should consider when allowing an employee to perform work from home.

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