When the Government consulted on its Green Paper, Work and Parents: Competitiveness and Choice, flexible working was the biggest single issue raised by both parents and business. As a consequence, the Government formed The Work and Parents Taskforce to consider it further.The result of the taskforces deliberations is a new statutory right for staff who have worked for an employer for a minimum of 26 weeks. This means that they can request a different working pattern to allow them to look after any of their children that are under six or, if disabled, under 18. This doesnt apply to all categories of employee, however agency workers and members of the armed forces are excluded.
There are further rules on eligibility. The employee must be the mother, father, adopter, guardian or foster parent of the child in question, or either married to or the partner of one of these individuals and living with the child. They can be of either sex but must have or expect to have responsibility for the upbringing of the child, and have not already applied to work flexibly during the previous 12 months. Above all, any application made must be for the purpose of caring for the child.
Flexible working doesnt just relate to hours or times worked, it also covers location and that includes homeworking. There is also a strict procedure for making flexi-working requests, which is worth noting.
The employee must make a written application and meet with various statutory requirements. The employer will then have 28 days to tell the employee whether or not the proposed changes are agreed and, if they are not, the employer must arrange a meeting to consider the request. The aim of the meeting will be to look at the desired working pattern in depth and at how it may be accommodated.
The number 14 is a significant one in the procedure. A written decision must be given within 14 days to the employee who, if dissatisfied, then has 14 days in which to make a written appeal. The employer has a further 14 days in which to arrange an appeal meeting and another 14 to produce a written decision.
A request may be refused on a number of statutory grounds including the burden of additional cost, the detrimental effect on the companys ability to meet customer demand and the inability to recruit extra staff. However, if the procedure doesnt produce the right result for the employee, they may complain to an employment tribunal on the grounds that the procedure hasnt been complied with. The final remedy will be a maximum of eight weeks pay in compensation. If the employer properly follows the procedure but still refuses a request, even when there are no objective reasons for a refusal, no compensation is payable. Yet, the act of going to the tribunal may involve an employee questioning an employers reasons for refusal.
One interesting aspect of the new right will be the precise content of any contract variation requested. On the face of it, these variations will be permanent. However, they often include conditions such as the length of time this change may apply.
It is also worth remembering that the right to request to work flexibly applies to both men and women. Claims have already been brought by women on the grounds of indirect discrimination under the Sex Discrimination Act. A woman can claim discrimination, for example, where an employer requires her to work full time but cannot justify it which places the woman at a disadvantage if she feels that she has to resign because full-time working conflicts with childcare arrangements. Also, the sex discrimination legislation applies to a much broader category of individuals than those who are defined as employees. It also covers contract workers, for example.
There have already been a number of sex discrimination cases dealing with flexible working and what the new statutory right means is that managers will need to pay far greater attention to whether flexible working can be accommodated in practice.
janet.gaymer@haynet.com
Janet Gaymer is head of employment law at Simmons & Simmons
