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.
Decision
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.
Rejection
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.
Association
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.
Copyright 2006 -
2010 Taylors Solicitors
»
Print
» |