Focus on the New Right to Request Flexible Working

by Helen Milgate and Humphrey Forest

The new right to request flexible working, introduced by section 47 of the Employment Act 2002, comes into force on April 6th 2003. Its limitations may come as a relief to employers, and a disappointment to those expecting a positive right to flexible working. Essentially, the new right is no more than a right for parents of children under 6 (under 18 if the child is disabled) to have a request for flexible working considered at a meeting. The request can be turned down for a number of business related reasons.

The new right is limited to requests to vary the hours, times or place of work. It might cover, for example, a request to work only during school hours or term time, but does not extend to a request to vary duties.

The right to request a variation is limited to:

• employees;
• with 6 months continuous employment;
• who are parents, or partners of parents. The definition of parent is wide and includes adopters, foster parents and guardians. Partners includes spouses and people living with the child and parent ‘in an enduring family relationship’;
• who have, or expect to have, responsibility for the upbringing of a child;
• children have to be under 6, or, if disabled, under 18. The definition of disabled is narrow: the child has to be in receipt of Disability Living Allowance;
• the application's purpose has to be to enable the applicant to care for the child.

The request can either be agreed, in which case it takes effect as a permanent variation to the employee’s terms and conditions, or refused. Requests can be refused if the employer ‘considers’ that 1 or more of 8 specified reasons apply.

The specified reasons are:-

• additional costs;
• problems in meeting customer demand;
• inability to reorganise the work among existing; staff
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work at proposed times of work;
• planned structural changes.

It will often be possible for an employer, who wants to refuse a request, to point to one of these reasons for refusing. It is enough if the employer ‘considers’ the reason to apply. The reason's adequacy or sufficiency cannot be challenged directly. It can only be challenged if the refusal is based on ‘incorrect facts’.

The employer's refusal must ‘contain a sufficient explanation as to why the grounds apply’. Clearly, the fuller the explanation, the easier it will be to claim the refusal is based on ‘incorrect facts’. Guidance is promised from the Government on what level of explanation will count as ‘sufficient’, but ultimately, it will be for the Tribunals to establish the position.

The Government is to provide a model application form, but its use will not be mandatory. The request must be:

• in writing (including e-mail);
• specify the change requested, and the date it should become operative;
• explain the effect of the proposed change on the employer, and how that effect might be dealt with;
• explain the relationship between employee and the child in question.

Only one application can be made in any 12 month period.

A meeting to discuss the application must be held within 28 days at a time and place convenient to both parties, unless the employer agrees to the request. Time runs from receipt of the request. The parties can agree an extension of time.

The employee has a right to be accompanied at the meeting by a fellow employee.

The employer must give a written decision within 14 days following the meeting, either

• agreeing to the application, and specifying the contract variation agreed to and the date it takes effect, or
• refusing the application, stating which of the specified reasons apply, with a sufficient explanation as to why those reasons apply, and setting out the appeal procedure.

The employee has 14 days to put an appeal in writing to his employer. An appeal meeting must then be heard within 14 days, with similar provisions for time extensions and the right to be accompanied. The written decision on appeal, agreeing or refusing as above, must be given within 14 days.

An employee can only complain to an Employment Tribunal if:

• the request has been refused for a reason outside the 8 specified reasons.
• the decision to reject was based on ‘incorrect facts’ (a curious, statutory concept).
• the employer has failed to hold a meeting or appeal, or to allow a companion, or to inform the employee of the decision.

There is no right to complain that a refusal is unreasonable or unfair. If the complaint is upheld by the Tribunal, they can:

• order the employer to reconsider
• award compensation, of up to 8 weeks pay, at a maximum rate of £260 pw.

Employees who are victimised as a result of requesting flexible working have a separate and more substantial right to compensation; and employees dismissed as a result of making a request are automatically regarded as unfairly dismissed.

Given its restricted nature and weak sanction, the new right is likely to have most impact, as the Government has suggested, in putting the topic of flexible working ‘on the workplace agenda’ rather than in disputed Tribunal cases.

However, employers should be careful before refusing requests too easily. Under existing law, to refuse a woman part time work for caring responsibilities may amount to indirect sex discrimination, unless the refusal is objectively justified. Similarly, refusal of a disability based request could give rise to a claim under the Disability Discrimination Act. Discrimination law will continue to give a more extensive and more effective route for enforcing some requests for flexible working.

Moreover, this new right to request flexible working for child care needs to be set alongside the numerous other rights to time off work for family responsibilities:-

• parental leave
• emergency dependants leave
• extended maternity rights (available where EWC is on or after 6th April 2003)
• paid paternity leave (available where child born or EWC is on or after 6th April 2003)

Employers may therefore want to consider developing their own comprehensive ‘family friendly’ policies dealing with all aspects of flexible working.

For an outline of the new right to request flexible working, see the DTI's website, www.dti.gov.uk. The promised draft application form, and guidance on the detail required for the employer's reply, should be available on this site before April 6th.