Flexible working: the basics
The right to request flexible working was introduced under the Employment Act 2002 and came into force on April 6, 2003. Secondary regulations set out the eligibility and procedural requirements. Together this legislation is known as the right to request legislation.
The right to request consists of:
- A right to request to work flexibly;
- A statutory request procedure;
- An obligation on the employer to properly consider applications;
- A limited number of grounds on which the employer can refuse a request.
Who can request flexible working?
To make a request under this legislation, an individual must:
- Be employed;
- Have 26 weeks’ continuous employment at the date the application is made;
- Not be an agency worker or a member of the armed forces;
- Not have made another application to work flexibly under the right to request legislation during the preceding 12 months.
Criteria for carers of children
In addition to the above criteria, an employee making a request to care for a child can only make a request in relation to a child under 17 (or under 18 if the child is disabled).
The child must have been born at the time the application is made. In addition, the employee making the claim must be either the child’s:
- Mother;
- Father;
- Adoptive parent;
- Guardian (including special guardians);
- Foster parent (including private foster carers).
Or:
- The spouse, civil partner or partner of one of the above;
- Have in force a residence order in their favour in respect of the child.
In addition, the employee making the claim must:
- Have, or expect to have, parental responsibility for the child;
- Be making the application to care for the child.
Criteria for adult carers
Employees caring for adults are also eligible to make a statutory request to work flexibly. An adult carer must be, or expect to be, caring for a person aged 18 or over who is in need of care and:
- Married to, or the civil partner or partner of the employee;
- A relative of the employee;
- Fall into neither category, but live at the same address as the employee.
Government guidance suggests carers of adults who request flexible working may be involved in a number of caring activities including:
- Help with personal care (dressing, bathing, using the toilet, etc);
- Help with mobility (walking, getting in and out of bed, etc);
- Nursing tasks (blood checking, changing dressings, etc);
- Giving or supervising medicines;
- Escorting to appointments (GP, hospital, chiropodist, etc);
- Supervising the person being looked after;
- Emotional support;
- Keeping the care recipient company;
- Practical household tasks (preparing meals, shopping, domestic help, etc);
- Help with financial matters or paperwork.
What kind of change can be applied for?
An eligible employee may request a change to:
- Hours worked;
- Times worked;
- Location of work (including homeworking).
There are few limits on what an employee can request by way of variation, including:
- Annualised hours;
- Compressed hours;
- Flexi-time or homeworking;
- Job sharing;
- Self-rostering;
- Shift working;
- Staggered hours and term-time working.
The right-to-request procedure
Step one: The employee must submit a written application setting out the work pattern they are requesting and their entitlement to make the application (in accordance with the Employment Act 2002). They must also specify any effect they anticipate the work pattern may have on the organisation and how that might be accommodated or addressed.
Step two: Within 28 days of receiving the request, the employer must arrange to
meet with the employee to discuss the application. The employee is entitled to be accompanied by a colleague.
Step three: Within 14 days after the meeting, the employer must write to the employee to agree the new work pattern and a start date, or provide grounds for rejecting the application. Where the application is being rejected, the letter should also set out the appeal procedure.
Step four: The employee can appeal the rejection of a request within 14 days of the appeal being rejected.
Step five: Within 14 days of receiving the appeal notice, the employer must arrange a further meeting to discuss the grounds of appeal.
Step six: Within 14 days after the meeting, the employer must deliver the appeal decision.
Grounds for refusal
An employer may refuse a request for flexible working only where one or more of the following grounds apply and sufficient explanation can be provided of why they apply:
- 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 or performance;
- Insufficient work during the periods the employee wants to work;
- Planned structural changes.
Enforcement
Employees can take a claim relating to an employer’s mishandling of a right to request to an Employment Tribunal. As well as the right to request legislation, Employment Tribunal claims were also commonly brought under the Sex Discrimination Act 1975. Since October 2010 this has been replaced by the Equality Act 2010.
For example, a woman returning from maternity leave who has had her request to work part-time refused, may have an indirect sex discrimination claim. Similarly, a man may be able to bring a claim under the same sex discrimination legislation if he can show a woman’s request would have been treated more favourably.
Automatic unfair dismissal
An employee who makes an application to work flexibly is protected against
detrimental treatment in the same way a woman is protected who takes or seeks to take maternity leave. Any dismissal of an employee would automatically be regarded as unfair if the reason for their dismissal was connected to their request to work flexibly. An employee dismissed because they tried to exercise the right to work flexibly, may also bring a claim for dismissal for asserting a statutory right.
What an employee should do if they feel they have been discriminated against
It is often advisable to seek legal help before making a formal complaint (contact martin searle solicitors). To make a formal complaint about treatment relating to the right to request, an employee should:
- Complain to a line manager or another manager;
- Raise a grievance and discuss it with the employer at the subsequent meeting;
- Serve a discrimination questionnaire.
What an employer should do if an employee makes a claim under right to request or sex discrimination legislation
It is advisable to seek specialist legal help where an employee has made a complaint relating to a right to request or sex discrimination (contact martin searle solicitors). The employer should also:
- Investigate the allegations thoroughly and with an open mind;
- Invite the complainant to raise a formal grievance;
- Invite the employee to attend a meeting to discuss the grievance;
- Allow the employee to be accompanied at the meeting;
- Decide on appropriate action;
- Allow the employee to take the grievance further if it is not resolved, for instance, if an employee does not accept the business reasons for rejecting their application;
- Keep records of any meetings.
How we can help
For more help and advice on the right to request and sex discrimination legislation contact your local martin searle solicitors’ ofice in Brighton (01273 609911) or Croydon (0845 189 0152).
