From 6 April 2009, the statutory right to request flexible working arrangements is extended to parents of children aged 16 and under. Employees with caring responsibilities for children aged up to 6 (18 and under where the child is disabled) and carers of adults already have this right.
An employee must have completed 26 weeks’ continuous employment with their employer in order to qualify for the right and can only make one request in any 12-month period.
There is a statutory procedure which must be followed when a request for flexible working arrangements is made.
The employee’s request must give details of the revised working pattern they wish to adopt. After acknowledging receipt of the request, the employer has a duty to consider it seriously to decide whether the business can accommodate the requested working pattern.
If the employer is able to agree to the request without further discussion, the employee must be notified of this in writing. If the employer wishes to discuss the application, a meeting must be arranged for discussions to take place with the employee within 28 days of receiving a valid request. If this is not possible, the deadline can be extended with the written agreement of the employee.
The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. That person may address the meeting and confer with the employee but may not answer questions on the employee’s behalf.
The employer must notify the employee of their decision within 14 days of the meeting. Further time to consider a request requires the employee’s written consent. If the employer and/or the employee are uncertain whether the new arrangements will work in practice, it is possible to undergo a trial period, which could take place during an agreed extension to the time allowed before the employer makes their final decision.
If the employer accepts a flexible working request, they must write to the employee giving details of their new working pattern, the date on which it will start and stating that the arrangement means a permanent change to the employee’s terms and conditions of employment (unless agreed otherwise). The notification must be dated.
If you decide that you cannot accommodate any kind of flexible working for an employee, you must write to them stating which of the listed business grounds for refusing a request apply and explain why these apply in the circumstances. The notification must be dated and set out the procedure to follow should the employee wish to appeal against the decision.
You can reject a flexible working request on only a limited number of set grounds. These are:
- planned structural changes;
- the burden of additional costs;
- a detrimental impact on quality;
- the inability to recruit additional staff;
- a detrimental impact on performance;
- the inability to reorganise work among existing staff;
- a detrimental effect on ability to meet customer demand; or
- lack of work during the periods the employee proposes to work.
Should the employee wish to appeal against the decision, they must do so in writing within 14 days of the date of receiving the written notice of refusal. The employer must arrange an appeal meeting within 14 days of receipt of the employee’s appeal notice. Where possible, the appeal should be heard by a different manager. The employer must inform the employee of the outcome of the appeal in writing within 14 days of the date of the appeal meeting.
The sanction against an employer who fails to grant a request where clear business reasons do not apply is that an employment tribunal can order that the application be reconsidered and can award a maximum level of compensation of eight times a week’s pay, subject to a statutory cap.
Where the employer agrees to change the employee’s terms of employment, there is no provision in the legislation for the employee’s contract to revert back to what it was should their circumstances change. It may, therefore, be sensible to discuss with the employee whether they wish the change to be for a specified period only.
Employees have protection against detrimental treatment for seeking to exercise their rights under this law and any dismissal for having done so will be automatically unfair.
The Department for Business, Enterprise and Regulatory Reform has made available forms for employees and employers to use at each possible stage of the process when a request for flexible working is made. It is not mandatory to use them, but employers will find them useful to make sure that all the statutory requirements are met. The forms can be found at the Department for Business, Enterprise and Regulatory Reform website.