Flexible working - legal overview (V4c8274ded7fbf7.46353500)

Summary:

Flexible working initiatives can encompass a whole range of arrangements including job sharing, part-time working, term-time only working, changes to start/finish times and flexitime schemes.
Parents of children aged 16 or under (or under 18 if the child is disabled) and carers of adults have the right to request (but not to insist on) flexible working.
A statutory procedure for dealing with requests should be followed:
- The request has to come from the employee who is responsible for the child's upbringing/care of the adult.
- Employees apply in writing and should complete a standard detailed form.
- There are strict meeting, decision and appeal timescales to adhere to.
- Valid reasons for refusal include customer detriment, costs etc.
- Employees have the right to be accompanied at the meetings.
Successful tribunal claims in respect of failure to agree to a request can only be made in relation to non-adherence to the process (eg not holding the meeting or not allowing representation). However, if a refusal is indirectly discriminatory, a discrimination claim may result, in which case, the award is unlimited.
Flexible working schemes can have positive benefits for both parties. For the employer this may include improved morale, better productivity, lower absence rates, higher retention, improved recruitment.

Most people are familiar with the concept of "flexitime" whereby an employee works specified "core hours" but has the flexibility to work the remaining contracted hours at any time within certain broad specified bands of time.

However a whole range of non-standard working arrangements has become increasingly common over the last decade, largely as a response to meeting recruitment difficulties, but also to improve motivation, to help retain qualified and experienced staff and often to support and encourage equal opportunity and diversity initiatives. In addition there has been pressure from employees who battle to maintain a satisfactory balance between their work and other commitments, and from the government, who have been taking legislative steps to facilitate this.

This is commonly referred to as "work-life balance" and initiatives taken by employers to help employees manage their work-life balance to best meet their needs and aspirations include the following:

The most common of these are part-time work, job sharing and flexitime. Many of these offer non-financial benefits which give the employee greater control of his/her life and enable a more satisfactory lifestyle to be achieved.

This overview deals with the statutory right to request flexible working. Parents of children aged 16 or under (under 18 if the child is disabled) and employees with caring responsibilities have the right to request flexible working arrangements. It should be noted that the right is to "request": there is no automatic right to work flexibly as there will always be circumstances where the employer is unable to accommodate an employee's request. Government figures show that 75% of workplaces receiving requests for flexible working in the last year approved them.

However many employers choose to go beyond this and have a flexible working policy

which extends the ability to request flexible working to all employees. When considering any of these varied arrangements, we would stress the need not only to consult fully with the individual involved, but also with all other staff affected: if you are considering a request from someone for a reduction in hours, how will the extra work be distributed? If you are considering more flexible working arrangements, what implications will this have in terms of cover, or the undertaking of routine tasks which have to be done at certain times? How will this impact on your ability to meet customer/client requirements at certain times of the year/month/day? By consulting fully, any issues will be properly aired and hopefully resolved and by reaching agreement in advance this should prevent any feelings of resentment amongst other employees.

The right applies to all employees (not "workers") who have a child aged 16 or under or a disabled child under 18 and who have completed at least 26 weeks' continuous service at the date the request is made.

The definition of "adopter" includes those who are adopting a child, whether domestically or inter-country, where the child has not been placed with the adopters by a UK adoption agency. Those who foster children privately and those with whom children are placed by fostering services are covered as well as those in whose favour a "residence order" is in force in respect of a child, as well as the spouse, partner or civil partner of such individuals.

A "carer" is defined as an employee who has at least 26 weeks' continuous employment at the date the application is made, who is or expects to be caring for a person aged 18 or over and the adult being cared for must be:

A "partner" is someone who, in the context of caring for both children and adults, is the other member of a couple consisting of either a man and a woman who are not married to each other but are living together as if they were husband and wife, or two people of the same sex who are not civil partners of each other but are living together as if they were.

Interestingly, there is no definition of the nature of care involved - just that the person is involved in "substantial and regular care". BIS (the Department for Business, Innovation and Skills) suggests that carers may need help with:

The UK workforce currently has three million carers (1.4m men, 1.7m women). One in five people are predicted to be caring for an elderly or disabled relative by 2010 - when care will affect 60% of households. Eldercare is predicted to replace childcare as the major work-life issue by 2020. However, unlike childcare, which tends to be planned and where the needs can be predicted, the level of assistance and care needed by older people often increases over time and is unpredictable.

The employee may request a change to his or her contracted hours of work, times of work and/or place of work.

A request must be put in writing (email is allowed). It must be signed and dated, must confirm the relationship with the child/person being cared for, must state that it is such an application and confirm that no previous applications have been made in the last 12 months. In addition, the employee is required to specify the working pattern he/she wishes to adopt and to explain the likely impact on the business, including how the request could be accommodated. The employee must also specify when he or she would like that change to take place. You may wish to use our standard request form

to help ensure the employee provides all of the necessary information.

The employee may request, for example, a change of working hours, a change to the times he/she is required to work or to work from home. Some requests may be minor: for example a delay in the start of working time to accommodate the school run, others may be more significant.

The employee should consider his/her request very carefully as only one application can be made each year, and an accepted application will normally mean a permanent change to his/her terms and conditions, unless otherwise agreed. Employees who have been granted more flexible arrangements will not have the right to insist on a return to full-time working (or a return to their previous hours or pattern of working, whatever these were) once their caring responsibilities have ceased or diminished. Therefore any proposals for change should be fully considered, especially where these may result in a drop in salary. The Regulations do seem to allow the parties to agree to a temporary change (if they wish) but many employers would be reluctant to guarantee that employees could revert back to their previous hours in several years' time: however this may be a preferred option in some (limited) cases. Also, a trial period may be agreed.

Since the timetable is strict for handling such claims, it is good practice to acknowledge receipt

of a request in writing. Also do check the employee is eligible to make such a request. If any of the required information is not provided in the request, employers should inform the employee that the application is incomplete and explain what further information is needed.

On receipt of a request the employer must arrange a meeting to discuss this with the employee (unless the request is simply accepted and the employee notified in writing of the variation agreed to and the date on which it will take effect). This meeting should take place within 28 days of receipt of the request. If the person who would normally consider the application is on sick or annual leave, the 28 day timescale commences on the day the individual returns. At this meeting, at which the employee may be accompanied by a fellow worker, the employer should discuss how best the request may be accommodated and consider any other alternatives which may be a better solution.

Following the meeting, the employer must provide a written decision

within 14 days of the date of the meeting.

If the employer agrees to the request, this should be confirmed

in writing, specifying the date on which the new contractual arrangements will apply and confirming what these arrangements are. Any changes are a permanent change to the terms and conditions unless otherwise agreed.

There is no automatic right to work flexibly as there will always be circumstances where the employer is unable to accommodate the requested work pattern. Employers who reject an application have to write and confirm

this, providing a specific business reason, which must be one of those permitted by the legislation, eg:

In addition, sufficient explanation must be included as to why the chosen grounds apply in relation to the employee, together with details of the appeal procedure.

Employees can complain if the employer rejects a request based on incorrect facts but cannot complain because they feel the employer's decision is unfair or unreasonable. A tribunal examining a claim will investigate the evidence supporting an employer's decision to reject a request to see whether it is based on incorrect facts and may ask what effect granting the request would have had. So it is advisable to create a paper trail showing your investigations prior to reaching a decision to reject a request and to ensure that you have sufficient evidence to justify your decision.

A further word of caution: whilst it may be possible to refuse a request for flexible working under one of the above business reasons, employers still also need to bear in mind indirect discrimination, particularly sex discrimination, which will continue to play an important role in achieving flexible working patterns. A female employee may claim indirect sex discrimination if she feels that her request has been unfairly refused and discriminates against women: the compensation for this is unlimited and can include an award for injury to feelings. When considering refusing a request, it is also worth calculating the costs of replacement, retraining, loss of experience against any potential inconvenience as well as the employee relations consequences of any refusal.

The employee may ask to be accompanied by a fellow worker at any meetings held in relation to his/her request. The companion has the right to paid time off during working hours to attend.

The companion is allowed to address the meeting (but not to answer questions on behalf of the employee) and to confer with the employee during the meeting. If the chosen companion will not be available at the time proposed for the meeting, the meeting should be postponed until a convenient time can be found within seven days of the date initially proposed by the employer.

Neither the employee nor the companion may be subjected to any detriment as a result of the employee seeking to exercise the right to be accompanied. Failure to allow a companion may result in a penalty of up to two weeks' pay if the employee complains to a tribunal.

Any employee who feels that he/she has been unfairly treated by the employer's refusal of his/her request has 14 days in which to appeal against the decision. An appeal should be made in writing, setting out the grounds for the appeal, and be dated.

Unless the employer decides simply to agree to the request and confirms

the agreement in writing, the employer must hold a meeting to hear the appeal within 14 days of the date on which the notice of appeal is given.

If the appeal is upheld, the employer should, within 14 days of the meeting, set out in writing the contract variation agreed to and the date on which the variation is to take effect. Where the employer dismisses the appeal, the grounds for the decision and sufficient explanation as to why these grounds apply should be confirmed

in writing - again, within 14 days of the meeting.

The above timescales may be extended by agreement (in writing) between the employer and employee. If the employee fails to attend two or more meetings without providing a reasonable explanation, the employer may treat the application as withdrawn (although it is good practice to write to the employee to confirm this).

There is currently no mechanism for providing a remedy to an employee whose employer unreasonably refuses a request to work part-time or who gives a reason which is different to one of those set out above, although tribunals can order the employer to reconsider the application. However the Secretary of State has retained a power to impose penalties where an employer has failed to provide this information, so this may change.

If the employee succeeds in bringing a claim that the refusal to a flexible working request is indirect discrimination, there is no limit on the compensation which may be awarded by a tribunal (which can include an award for injury to feelings).

If you are considering requests which involve a reduction in hours, or changes in the number of days worked, do consider the following. The list below is not exhaustive and some of the items may not be appropriate but it is a useful starting point! If considering home working, see our separate guide

The advantages of taking a more flexible working approach are outlined in our guide to flexible working.

What if other employees resent one person leaving work early and they all ask to work different hours?

The managers will still have to ensure that adequate cover is provided to meet business needs so it makes sense to make sure everyone is consulted when new working arrangements are introduced.

All employees should be treated fairly and not overloaded with work: resentment may well arise if no arrangements are made to deal with part of someone's job when they reduce their hours. Remember, if hours are reduced so is the pay, so you may not get the flood of requests you are expecting!

We agreed to an employee returning to work on a part-time basis following her maternity leave but (after a year) it is now clear that this is not working and we need full-time cover. How do we proceed?

You should start formal consultation as soon as possible. Do properly consider whether you have good business justification for increasing the cover but if this employee refuses to increase her hours, there are several other options you must explore before considering dismissal/replacement.

First of all, have a conversation with her explaining the situation and your requirements going forward. It may be that she is already aware that this is an issue. Discuss whether she could consider increasing her hours. Consider whether some of the work could be done remotely if travelling in every day is an issue.

If increasing hours is not an option, you should explore the possibility of a job share, so that you have the full week of cover. Only if this is not possible from a business perspective should you then look at alternative roles for her and ultimately dismissal for 'some other substantial reason'. (She is not redundant because you have a greater, rather than a lesser, need for the type of service she provides.)

So meet with her and allow a consultation period of around a month - this is especially important as she will have to review childcare arrangements. Keep talking to her during the consultation period to work through her concerns. Once you have her initial responses, you may need to take further advice if you cannot reach an agreement which is satisfactory to both parties.