With flexible working widely accepted by many employers now, it is easy to forget that in fact the right to request flexible working only applies to limited categories of employees. In this article we go back to basics and provide a reminder of the statutory framework that governs this area.
The Basic Right
The right to request flexible working (Right to Request) was introduced under the Employment Act 2002 (EA 2002) and came into force on 6 April 2003. It has been enhanced subsequently by two further pieces of legislation. The legislation provides a Right to Request - it does NOT give an automatic right to flexible working.
Initially, only carers of children under the age of six (or disabled children under the age of 18) qualified for the Right to Request. The Work and Families Act 2006 (WFA 2006) later extended this right to those who care for adults. Since 6 April 2009 the right has been extended to those who care for children up to and including the age of 16.
The Right to Request
The Right to Request is very limited in nature. It consists of:
A right to request to work flexibly.
A statutory request procedure.
An obligation on the employer to consider the request properly.
A limited number of grounds on which the employer can refuse the request.
As stated above, the Right to Request Legislation does not create a right to work flexibly or part-time, rather it provides a statutory framework through which a request from an eligible employee must be considered.
Who can apply?
To qualify under the legislation to make a request you have to:
Have 26 weeks' continuous employment at the date the request is made.
Not be an agency worker or a member of the armed forces.
Not have made another request in the preceding twelve months.
Despite the right to request being limited, in fact many employers have embraced the concept of flexible working and have extended their offering way beyond what they are required to do. Studies have shown that many employers have reaped the benefits of this offering in terms of staff retention, staff satisfaction, and higher morale amongst staff.
Caring for children
In addition to the criteria set out above, those individuals making a request in order to care for a child must satisfy the following criteria:
1. Be making the request in relation to a child under 17 years old (or 18 years old if the child is disabled)
Please note the child needs to have been born at the time the request is made, although many employers will welcome applications in advance of this in order that they can better plan for the future.
2. Be either:
The child's mother, father, adoptive parent, guardian or foster parent; or
The spouse, civil partner or partner of the child's mother, father, adopter, guardian or foster parent.
3. Have or expect to have responsibility for the child's upbringing
This requirement has not been tested in the courts and it is not clear what level of responsibility is necessary.
4. Be making the application in order to care for the child
Again, the courts have not considered whether caring for the child must be the sole or main purpose of the flexible working application, or exactly what "caring for" a child means.
Caring for adults
Employees caring for adults can make a request, providing they are, or expect to be caring for a person aged 18 or over who is in need of care and who is:
Married to, or the civil partner or partner of the employee; or
A relative of the employee; or
None of the above but who lives at the same address as the employee.
Again, there is little to assist in what 'caring' actually means.
What changes can you request?
An eligible employee may request:
A change to the hours they work.
A change to the times when they are required to work.
To work from a different location (for example, from home).
The scope of the legislation includes (but is not limited to) applications for annualised hours, compressed hours, flexi-time, homeworking, job-sharing, shift-working, staggered hours and term-time working.
The Right to Request procedure
The employee must submit a written application setting out the work pattern that they are requesting and specifying their entitlement to make the application. The employee is also required to specify any effect they anticipate the proposed work pattern would have on the employer's business and how such effects might be accommodated or addressed in practice.
Within 28 days of receiving the request, the employer must arrange to meet with the employee in order to discuss the application. The employee is entitled to be accompanied by a worker employed by the same employer at the meeting.
Within 14 days of the date of the meeting, the employer must write to the employee either to agree to the new work pattern and set a start date, or to provide grounds for the rejection of the application and set out the appeal procedure.
The employee can appeal the rejection of a request, but must do so within 14 days of the appeal being rejected.
Within 14 days of receiving the appeal notice the employer must arrange a further meeting in order to discuss the grounds of appeal.
Within a further 14 days after the meeting the employer must deliver the appeal decision.
In reality, the procedure used may be far more informal than this, and a usual first step would be to approach either HR or your line manager. However, if your employer wishes to follow the statutory process that is what you must do.
Refusal of request
The legislation recognises that an employer may have business reasons why it cannot accommodate a specific flexible working request. There are eight specific grounds for rejecting a request, which are:
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.
It will generally be possible for an employer to slot their refusal into one of these categories, which is why the Right to Request procedure is sometimes described as ‘toothless’.
If your employer has not complied with the process in some way, an employee may make a complaint to an employment tribunal only on very limited grounds, namely:
The employer failed to properly deal with the request by failing to:
hold a meeting;
notify a decision; or
offer a right of appeal.
The employer refused the request for a reason other than one of the eight prescribed reasons; or
The decision to reject the application was based on incorrect information.
A tribunal cannot question the business reasons behind an employer's decision to refuse a request, and therefore providing they complied with the procedure and given one of the eight reasons, they are unlikely to have a successful complaint under the flexible working legislation against them.
Other Claims and Remedies
While the above may look as though there is little to be done about refusal of a request, employers should be aware that there are many other claims that may arise through rejection of a flexible working request. The common ones are constructive dismissal, direct or indirect sex discrimination, and sometimes unfair dismissal. These claims are beyond the scope of this article but they present much more significant risks to employers than failure to comply with the Right to Request procedure, including the possibility of unlimited compensation in a successful discrimination claim.
For more information visit www.thomasmansfield.com.
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