Flexible Working - Legal Advice | Royds Withy King

Introduction

With more and more people wanting to continue their careers alongside raising a family there is an increasing demand for flexibility in the workplace relating to hours, location, requests to work part time etc.

With the Government’s recognition of these requirements, employers are obliged to consider formal requests from employees who wish to vary their contractual working arrangements.

The Flexible Working Regulations allow specified relatives of either a child under 17 years of age or a disabled child under 18 to apply to their employer to change their hours worked, working times and/or their place of work to enable them to care for the child. From April 2011 this right is being extended to all children under 18 years old.

This entitlement also applies to those who care for adults who are dependent on them.

Qualifying Factors

  • Must be mother, father, adopter, guardian or foster parent of a relevant child or dependent adult
  • Must have a minimum of 26 weeks employment
  • Must have or expect to have responsibility for the upbringing of the child concerned or dependent adult
  • Must be caring for a person to whom they are either married or living with; or related to; or living at the same address

Application by the Employee

An application can be made in writing at any time up until 14 days before the child concerned reaches the age of 17 (or, if disabled, 18) or, if for caring for a dependent adult, at any time. An employee absent on maternity or paternity leave can still submit an application and there is no prescribed form. To be valid the application must state:-

  • It is an application under the Flexible Working Regulations
  • Specify the change applied for and the date it would take effect
  • Explain the effect the change would have for the employer and how this might be dealt with
  • Explain how the employee meets the necessary relationship with the child concerned

Response by Employer

The employer is obliged to hold a meeting to discuss the application within 28 days of the date upon which the application was received. However, the employer and employee may agree an extension of time which should be confirmed in writing by the employer.

The Meeting

The employee has a right to be accompanied by a work colleague. If the companion is not available at the proposed time for the meeting, the employee can propose an alternative time within a week of the employer’s original date.

There is no need for a meeting where the employer agrees to the application within the 28 day period. In this case, the employer must send the employee a notice specifying the contract variation agreed to and the date on which this takes effect.

If there is a meeting, the employer must notify the employee of its decision within 14 days. The employer and employee may agree an extension of this time period which may be sensible if issues have arisen at the meeting which need further consideration, such as the interests of other employees.

The employer’s decision must be in writing and dated. Where the decision is to agree with the application, the notice must specify the contract variation agreed to and state the date on which the change takes effect. If the decision is to refuse the application, then the written notice from the employer must specify one of the permitted grounds for refusal, contain a sufficient explanation as to why these grounds apply and set out the appeal procedure.

Grounds for refusal

The legislation specifies the grounds on which the employer can refuse an application:-

  • the burden of additional costs;
  • the detrimental effect on the ability to meet customer demand;
  • the inability to reorganise work among existing staff;
  • the detrimental impact on quality or performance; and
  • planned structural changes such as reorganisations or redundancies

The Appeal

A dissatisfied employee can appeal within 14 days of the date on which the notice of decision was given. The appeal must be in writing, set out the grounds of appeal and be dated. The employer is obliged to hold the appeal within 14 days of the employee’s notice unless the employer upholds the appeal, notifies the employee in writing of this, specifies the contract variation agreed to and states the date on which the variation takes effect.

In all other cases, the employer must hold an appeal meeting at a mutually convenient time and place. The person hearing the appeal should not be the same person who gave the original decision. The employer must notify its decision in writing within 14 days following the appeal meeting. Once again, if the employer upholds the appeal, its written notice must specify the contract variation agreed to and state the date on which it takes effect. If the appeal is dismissed, the written notice must state the grounds for the decision and contain a sufficient explanation as to why those grounds apply.

Change of mind

An employer is entitled to regard the application as having been withdrawn in certain circumstances.

Remedies and Compensation

If the appeal is unsuccessful, the employee has the following options:-

  • Make another application but this cannot be done within 12 months of the first application
  • Apply to an Employment Tribunal within 3 months of the appeal meeting. If the Tribunal finds in favour of the employee, it can order the employer to:-
    • reconsider an application by following the procedure correctly; and/or
    • pay an award to the employee
    • The level of compensation will be an amount that the Tribunal feels to be just and equitable in all the circumstances to a maximum of 8 weeks’ pay, capped at the statutory maximum
  • Apply to the Tribunal in any event where the employee has been prevented from being accompanied either at the meeting to discuss the application or the appeal meeting in which case the maximum compensation to be awarded is 2 weeks’ capped at the statutory maximum
  • Apply to the Employment Tribunal on other grounds, e.g. sex discrimination

Crucially however, the Tribunal is not able to challenge the commercial validity of the employer’s decision.

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