UK: Flexible Working: New Rights Under the Employment Act 2002

After 6 April 2003, qualifying employees will have the right to request flexible working arrangements. Although there is no obligation on the employer to make a change, employers will have to take the request seriously and justify any refusal on recognised business grounds.

A request can be made by any employee:

• with 26 weeks’ service on the date the request is made;

• who is the mother, father, adopter, guardian or foster parent of a child under the age of 6 or a disabled child under the age of 18, or is married to such a person and living with the child or is the partner of such a person;

• who has or expects to have responsibility for the upbringing of the child and who is making the application in order to care for the child;

• who has made the request no later than 2 weeks before the child’s 6th (or 18th) birthday; and

• who has not made such a request in the previous 12 months.

Agency workers and members of the armed services do not qualify.

The request can involve a change to the number or timing of working hours or to work partly or fully from home.

The types of arrangements which are envisaged are compressed hours, flexitime, home working, job-sharing, teleworking, term-time working, shift working, staggered hours, annualised hours and self-rostering.

Employees will not have a right to revert back to previous arrangements. Any change agreed by the employer will be permanent unless agreed otherwise by the employee and employer.

The application must:

• be in writing;

• state that it is an application for flexible working;

• specify the change requested and the date on which it is proposed the change should take effect;

• explain what effect, if any, the employee thinks the change will have on the employer and how this might be dealt with;

• explain how the employee meets, in respect of the child concerned, the conditions as to the relationship required; and

• state whether a previous application has been made to the employer and, if so, when.

An employee’s entitlement to benefits will only change if there is a change in the number of hours worked. If a con-tract provides for benefits when certain criteria are met, an employee will still have to meet those criteria. If the employee requests to work part-time, the employee will be entitled to receive pro rata benefits and the same qualifying periods should apply as with full time employees. The regulations do not prevent an employer paying in lieu of a benefit if a pro rata benefit cannot be provided.

To ensure that the request is considered carefully, the employer must follow the procedure set out below. A request can only be refused if it is on good business grounds, as explained in more detail below. An employee can then only challenge a decision to reject a request if the employer has failed to follow the statutory procedure or has based its decision on incorrect facts.

The employer can at any time agree to the request provided that notice is given in writing and confirms the date on which such changes are to take effect.

Within 28 days of receiving a request, the employer and employer must have a meeting (at a time convenient to both employer and employee) to discuss how the request might be accommodated.

Within 14 days of the meeting, the employer must notify the decision to the employee in writing. If the request is refused, the employer must give the grounds of refusal (see paragraph 7 below) and the notice must contain a "sufficient explanation" as to why the grounds apply. The notice must also set out the appeals procedure.

An employer can refuse to grant a request on one or more of the following business grounds:

• burden of additional costs;

• detrimental effect on ability to meet customer demand;

• inability to reorganise 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; and

• planned structural changes.

• An employee has 14 days from the date of receiving the decision from the employer to bring an appeal.

• An appeal must be in writing and must set out the grounds for appeal.

• Grounds for an appeal are not limited but should concern the failure to follow the correct procedure, the failure to explain sufficiently the business reasons for rejection, or that a fact in the explanation is incorrect.

• Where possible, a more senior manager should hear the appeal.

• Unless the appeal is upheld without a meeting being necessary (and written notice is given to the employee in the prescribed form as set out above), a meeting to consider the appeal must be held within 14 days of receiving the notice of appeal.

At both the first meeting and the appeal meeting, the employee can be accompanied by a colleague (not a trade union official unless he/she is also an employee) who can address the meeting and confer with the employee but not answer questions on the employee’s behalf. The meeting should be postponed if the employee wants to be accompanied and the companion is not available at the arranged time.

A failure to grant this request can lead to a fine of two weeks’ pay (up to a maximum of £260 per week).

Time limits can be extended by mutual consent if recorded by the employer. Withdrawal of Application

An employer can treat an application as withdrawn if:

• the employee notifies him or her that the application is withdrawn (either in writing or orally);

• the employee fails to attend a meeting or an appeal meeting more than once; or

• without reasonable cause the employee refuses to give the employer information required to assess whether the variation should be agreed to.

Unless the withdrawal is by way of written notice, the employer must confirm the withdrawal in writing to the employee.

Tribunals do not have the right to question the commercial validity of the employer’s decision or substitute their own business judgements.

Applications can be made to the employment tribunal during the procedure if:

• the employer has failed to hold a meeting / appeal meeting; or

• the employer has failed to notify the employee of its decision / appeal decision.

Applications can be made to the employment tribunal after the procedure has ended if:

• the employer has failed to comply with the procedural requirements;

• the employer rejected the application on a ground that was not a permitted business ground as set out above; or

• the employer based it decision to reject the request on incorrect grounds.

Such complaints must be brought within 3 months of the date on which the employee was notified of the decision to reject the appeal or the date on which the breach of the regulations was committed.

A tribunal can award such an amount of compensation as it finds just and equitable in all the circumstances up to a maximum of 8 weeks’ pay (based on a maximum weekly wage of £260), or make an order that the employer reconsiders the request.

An employee has the right not to be subjected to any detriment by his or her employer on the ground that the employee has made or proposed to make a request for flexible working or brought proceedings against an employer in relation to such application or proposed application.

Detriment can cover a wide range of forms of unfair treatment such as denial of promotion, facilities or training opportunities which would otherwise have been made avail-able.

Further, an employee shall be treated as unfairly dismissed if the reason or the principal reason for dismissal is related to an application or proposed application for flexible working. Such a dismissal will be automatically unfair and not subject to the one year’s service qualifying period. This protection against dismissal also applies if an employee is selected for redundancy on those grounds.

Employees whose flexible working requests have been turned down can also bring claims for indirect discrimination if, for example, the refusal to adapt working conditions has a materially greater detrimental impact on women than men. A refusal might also in certain circumstances amount to a repudiatory breach of contract enabling the employee to claim constructive dismissal.