Date 27 June 2008
The Government has confirmed that following a review of the right to request flexible working it will implement the recommendations of BERR that;
- The right to request flexible working is extended to those with parental responsibilities for children up to the age of 16
- The extension of the right should not be phased in but implemented in one go (it is likely to come into force in April 2009)
Currently employees can request flexible working in order to care for:
- A child under 6 years old where they are the parent, adopted parent, foster parent or guardian of that child or spouse, civil partner or partner of that person
- A disabled child under 18 years old, again where they are the parent, adoptive parent, foster parent or guardian of that child or the spouse, civil partner or partner of that person
- A person aged 18 or over who is in need of care and is the spouse, civil partner or partner of the employee or a relative of the employee or lives at the same address of the employee
In order to have the statutory right to request a contract variation they must be:
- An employee not a self employed contractor/consultant/agency worker;
- Have 26 weeks continuous employment at the date of application;
- Not have made another application in the preceding 12 months
Following a request an employer has several obligations:
- They must arrange to meet with the employee within 28 days of receiving a request. The employee is entitled to be accompanied at this meeting by a colleague
- Within 14 days of the meeting the employer must write to the employee either to agree the new pattern and set a start date, or reject their application providing an explanation as to why the grounds below apply. They must offer an appeal
- The employee must appeal in writing within 14 days of being notified of their request being rejected
- Within a further 14 days the employer must determine the appeal decision
These deadlines can be varied only by mutual agreement
Employers should consider any request carefully and their decision to refuse an application should be on the basis that one of the following grounds applies;
- The burden of additional costs
- Detrimental effect on ability to meet customer demands
- 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
Employers should be aware that a failure to follow the above procedures can leave them open to an award of compensation of a maximum of eight weeks pay and at risk of a complaint of sex discrimination (unlimited compensation).
One of the positive aspects of the report produced by BERR is that although only around 6,000,000 employees currently have the right to request flexible working, over 14,000,000 employees, including part time workers actually work flexibly. This is an indication that many businesses are offering the right to work flexibly to all employees already and not just those that request this.
For further information about any of the topics covered in this edition of Stay Alert, please contact Nikki Petken on 01727 798000 or by email at nikki.petken@salaw.com.
© SA Law 2008
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.