UK: Update on Family-Friendly Rights

Last Updated: 15 January 2003

  • Requests for flexible work – second set of regulations approved
  • DTI Guidance on new leave rights
  • New HSE Guidance
  • Equal pay questionnaires
  • Further changes?

Requests for flexible work – second set of regulations approved

The right to request a permanent change to terms and conditions relating to hours and/or location of work is contained in the Employment Act 2002 ("EA") (see e-bulletin dated 25th February 2002), which provided that the detail was to be set out in regulations. Regulations covering the procedure for making flexible work requests were approved a few weeks ago (see e-bulletin dated 22nd November 2002) and Parliament has now approved a second set of regulations dealing with eligibility, complaints and remedies (copy available here). Both sets of regulations will come into force on 6th April 2003.

The new regulations provide that

  • a request for flexible working can only be made if the employee has been continuously employed for 26 weeks;
  • the employee must be the mother, father, adopter, guardian or foster parent of the child, or the spouse or partner of such a person, AND they must have or expect to have responsibility for the child's upbringing;
  • applications must be written, dated and state whether and when a previous application was made;
  • employees can only complain to a tribunal once they have received a rejection of their application on appeal or, prior to this, if the employer fails to hold a meeting with the employee or fails to notify the employee of his decision within the specified time limits;
  • note that the EA provides for three types of complaint: that the employer's reason for refusal is not one of the permitted types of reasons set out in the EA, that the refusal was based on incorrect facts, or that there was a procedural failing. A complaint that the employer's given reason does not justify refusing the request cannot be brought under the EA – but that is not the end of the story (see below);
  • where a complaint is upheld the tribunal can order the employer to reconsider the application or award compensation; the maximum compensation is set by these regulations at eight weeks' pay (subject to the statutory cap on a week's pay, which from February 2003 will be £260 per week – therefore the maximum will be £2,080).

It is important to remember that employees may also be able to bring sex discrimination claims, whether or not they are eligible for this new statutory right and whether or not they have complied with the statutory procedure. Women with childcare responsibilities will often be able to show that a requirement to work full-time is indirectly discriminatory, throwing the burden onto the employer to justify the requirement (in terms of demonstrating a real business need outweighing the discriminatory impact). Men may have a claim for direct discrimination if comparable women are permitted to work flexibly. In contrast to the new statutory right to request, there is no cap on the compensation that can be awarded for sex discrimination and a tribunal could also make a recommendation that an employer comply with a request (and, if it refuses, award additional compensation).

Employers would therefore be unwise to reject out of hand a request to work flexibly on the basis that the employee is not eligible for the new statutory right, has not used the correct procedure, or has sought to work flexibly for a limited period only (as opposed to the permanent change provided for by the new right). Equally, where a request is made within the EA regime, employers who simply go through the motions and refuse the request on one of the permitted grounds may comply with the new right but may still run the risk of a discrimination claim if they are unable to show that the reason they give objectively justifies the refusal. Further, the reason given by the employer pursuant to a statutory request could well be useful evidence for an employee in any discrimination claim.

DTI Guidance on new leave rights

The DTI have now published detailed guidance on the revised maternity rights and the new right to paternity leave and pay also coming into force on 6th April, and the Revenue forms for statutory paternity and adoption pay are also available on the DTI website. Interactive guidance on the new rights is available on the DTI "TIGER" website.

New HSE guidance

Continuing the family theme, the HSE have published a new edition of "New and Expectant Mothers at Work, A Guide for Employers" (second edition, HSE Books 2002 (HSG122) ISBN 0717625834 £9.50). This explains how to carry out the obligatory risk assessment for pregnant employees. Note that a failure to carry out this assessment will not only be a breach of health and safety regulations but could also amount to unlawful sex discrimination, as held by the EAT in a recent case.

Equal pay questionnaires

The new statutory equal pay questionnaire is also expected to come into force in April 2003. Consultation on the draft questionnaire ended on 10th January 2003 and the enabling section of the Employment Act is to come into force on 6th April 2003. The questionnaire which will operate in a similar way to the existing sex, race and disability discrimination questionnaires, but subject to an eight week time limit for employers to respond. Tribunals will be able to draw inferences from a deliberate refusal to answer or an evasive or equivocal reply. Employers will be asked whether they agree that specified persons are appropriate comparators doing equal work, whether the employee is receiving less pay and, if so, why.

Further changes?

A joint Treasury/Department of Trade document, "Balancing work and family life: enhancing choice and support for parents" was published on 14th January explaining the Government's strategy in relation to the new leave rights and tax credits for families, but also including possible next steps on which views are sought. The document notes that the new measures coming into effect this April will need time to bed down before considering any further changes, and that the Government is already committed to reviewing the duty to consider requests for flexible working in three years' time. However, the Government also states that, in addition to changes to tax credits and exemptions, it is considering the following changes to employment rights:

  • allowing parents to use their full parental leave as one block at the end of maternity, paternity or adoption leave;
  • whether to allow fathers time off to attend ante-natal care;
  • whether to extend the period of paid paternity leave and/or introduce unpaid paternity leave; and
  • the case for extending paid paternity leave in cases of multiple births and disabled children.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions