The Employment Rights Act 2002 gave employees who have children, the right to apply for flexible working hours.
The Flexible Working Regulations 2006 extended family rights under the Work and Families Act 2006 such that employers are also obliged to consider requests for flexible working from those who care for certain types of adults.
The demand for part-time and other flexible working patterns is high. More than half of new mothers work flexibly and three quarters of businesses say that the regulations have had no effect on the workplace.
A right to ask, not a right to work flexibly
The regulations do not provide an automatic right to work flexibly as there will always be circumstances when the employer is unable to accommodate the employee's desired work pattern. The right to ask is designed to meet the needs of both parents and employers, especially small employers.
The law aims to facilitate discussion and encourage both the employee and the employer to consider flexible working patterns and to find a solution that suits them both.
The employee has a responsibility to think carefully about their desired working pattern when making an application and the employer is required to follow a specific procedure to ensure requests are considered seriously.
What is flexible working?
Flexible working covers a wide range of options.
There is no set pattern to part-time working. It may involve a later start and earlier finish time than a full-time position, working mornings or afternoons only, fewer working days in the week or any other arrangement of working time whereby the employee is contracted to work less than normal basic full-time hours.
Flexible working hours allows employees to choose, within agreed limits, when to begin and end work, and may be planned to enable individuals to attend to domestic or other responsibilities.
Employees may be required to work during some essential periods (known as core times) and must work an agreed number of hours within an 'accounting period' which is typically four weeks.
Outside core times are flexible bands when employees may choose whether to be at work or not. This enables employees to vary their start, finish and lunch times and usually, within agreed limits, employees can carry over to the next accounting period any excess or deficit in the number of hours they are required to work.
This is where employees in the same workplace have different start, finish and break times. It can be an effective means of covering longer opening hours.
Compressed working hours
This allows employees to work their total number of agreed hours over fewer working days. Often a five day working week is compressed into four days.
This involves two people carrying out the work that would normally be done by one person.
This is the pattern of work in which one employee replaces another on the same job within a 24 hour period. Shift workers normally work in crews which operate as separate shift teams.
Swapping enables employees to negotiate their working times by re-arranging shifts amongst themselves with the proviso that the required shifts must be covered.
Similar to shift swapping, this allows employees to nominate the shifts which they would like to work, leaving employers to compile shift patterns which match the individual preferences of staff to agreed staffing levels.
Time off in lieu or banked hours
This allows employees to take time off to compensate them for extra hours worked.
This enables an employee to remain on a permanent contract, but also to be able to take paid or unpaid leave during school holidays.
This is a system whereby the hours that an employee is contracted to work are calculated over a whole year.
Additional leave entitlement may be agreed either unpaid or paid with salary re-calculated to take account of extra leave.
This is a voluntary arrangement whereby an employee reduces the number of hours worked for an agreed period with a guarantee that full-time employment will be available again at the end of this period.
Working from home
This arrangement can cover a wide range of jobs from sewing and assembly work to managerial and professional functions. New technology makes communication with office and customers possible by telephone, fax and e-mail from home, car or other remote locations.
Unique working patterns
These are individually tailored patterns which may involve a combination of options.
Some employers offer unpaid breaks to their employees with a guarantee that they will be able to return to work at the end of the agreed period.
What are the benefits to employers of flexible working?
It makes good business sense to introduce flexible working arrangements to enable employees to achieve a better work–life balance.
As well as providing a better quality of life for their employees, businesses can also increase competitiveness and profitability.
Flexible working arrangements can help employers to address these pressures by enabling them to:
- maximise available labour
- improve customer service
- increase productivity
- reduce employee absenteeism, turnover, sickness and stress
- attract a wider range of candidates such as part-time workers
- reduce recruitment costs
- retain valued employees
- increase employee commitment, morale and loyalty
- increase the organisation's ability to deal with change by innovation and creativity
Many organisations already have flexible working arrangements and identify the following benefits:
- greater sense of responsibility, ownership and control of working life
- better relations with management
- increased loyalty and commitment
- improved well-being, less stress
- more time to focus on life outside work
- better able to cope with children and other care pressure
- more opportunity to continue a career
The right to apply for flexible working
A parent is an employee who:
- has a child under six years old, or a disabled child under 18
- has parental responsibility for the child (this includes biological parents, legal guardians, adoptive and foster parents and spouses of these
Same sex partners are counted as parents as long as they have parental responsibility for the child.
To qualify as a carer, the person you care for must either be:
- a spouse or partner
- someone who is a near relative of the employee
- someone who lives at the same address as the employee
Note that "near relatives" can include in-laws, uncles and aunts, and step-relatives.
Right to apply
The application can cover:
- hours of work
- times of work
- place of work (as between home and place of business only)
The following conditions must be satisfied in order for an application for flexible working to be made. The applicant must:
- be an employee (who has entered into or works under a contract of employment – agency workers or members of the armed forces are not eligible)
- be making the application in order to be able to provide care
- have worked for their employer for 26 weeks continuously at the date that the application is made
- not have made another application to work flexibly under the right during the past 12 months
How must the application be made?
The employee must comply with the following requirements:
- the application must be made in writing, stating that it is being made under the statutory right to apply for flexible working
- the application must confirm the employee's relationship to the child or the person who needs care
- the application must set out the employee's proposal and explains what effect the employee thinks this will have on the employer's business and how this may be dealt with
- the application must specify a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it
- this may take 12–14 weeks
- the application must state whether a previous application has been made and if so the date on which it was made
- the application must be dated
Employees should be aware that if the employer approves their application, the variation in contractual terms is a permanent one and the employee has no automatic right to change back to their previous pattern of work, unless the application seeks the variation for a specified time period only. A trial period may be agreed.
How must the employer respond to the applicant?
In order to comply with the procedural requirements the employer must:
- Arrange a meeting with the employee within 28 days of receiving the application to discuss the request. This meeting is not required if the employer agrees to the terms of the application and notifies the employee accordingly within 28 days of receiving the application.
- Allow the employee to be accompanied by a work colleague if they so wish.
- Notify the employee of their decision within 14 days of the date of the meeting.
- Arrange to hear the employee's appeal within 14 days of being informed of the employee's decision to appeal. The employee must be allowed to be accompanied by a work colleague if they so wish.
- Notify the employee of the decision on the appeal within 14 days after the date of the meeting.
The employer and the employee can agree to extend any of these time limits. The employer must record this agreement in writing, specifying the period to which the extension relates and the date on which the extension is to end. A copy of this record must be sent to the employee.
On what grounds can applicants be refused?
Applications for flexible working arrangements can be refused only for the following reasons:
- the burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to re-organise 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
If your employer turns down your request either initially or after an appeal hearing, they must state in their written notification of refusal a 'sufficient explanation' of why one or more of these business grounds (or grounds for a decision on appeal) apply.
This statement is likely to be important to your case in any subsequent legal proceedings, whether under the flexible working rights or other legal rights.
What can an employee do if an employer refuses an application for flexible working?
Wherever possible it is better to reach agreement on flexible working within the workplace. There are a number of options open if the employer refuses the application at the appeal stage of the procedure including:
- informal discussions with the employer – there may be some simple misunderstanding of the procedure or facts which can be resolved by an informal route
- use of the employer's internal grievance procedure
- assistance from a third party such as a trade union representative or some other suitably experienced person
- ask Acas to help find a solution – by providing information or where appropriate through a process of conciliation
Where agreement cannot be reached other options are:
- referral to the ACAS Arbitration Scheme
- complaint to an employment tribunal
Remedies and compensation
If a decision is made against an employer by an employment tribunal or an Acas arbitrator, the employer may be ordered to reconsider the employee's application for flexible working and may also be ordered to pay the employee compensation.
The actual amount of compensation will be determined by the tribunal or the Acas arbitrator on the basis of what is considered to be just and equitable given the circumstances of the case.
If a complaint of refusal to allow the employee to be accompanied is upheld, the tribunal or arbitrator can award two weeks pay in compensation.
Dismissal and detriment
Employees are protected from suffering dismissal or detriment in the exercise of their right to apply to work flexibly. Complaints may be made to an employment tribunal if:
- the employee has suffered detriment as a result of exercising or seeking to exercise the right to apply to work flexibly
- the employee has been dismissed as a result of exercising or seeking to exercise the right to apply to work flexibly
- a person has suffered detriment or been dismissed as a result of accompanying or seeking to accompany an employee in the exercise of the right to apply to work flexibly
Other rights for working parents introduced by the Employment Act
Eligible employees can take up to two weeks' paternity leave and pay to care for their baby and support the mother.
Employees whose children are placed with them as adoptive parents have the right to adoption leave and pay. The right is available to individuals who adopt, or one partner of a couple adopting jointly. There is also a right to paternity leave and pay for the other member of the couple, or an adopter's partner.
Both mothers and fathers – who have completed one year's service, are entitled to 13 weeks' (unpaid) parental leave to care for their child. Parents of disabled children are entitled to 18 weeks' parental leave up to the child's 18th birthday, providing they have the qualifying length of service.
All employees are also entitled to take a reasonable amount of (unpaid) time off work to deal with an emergency or unexpected situation involving a dependent.