Flexible working

Employers have had a statutory duty to seriously consider requests received from parents of children aged under six or disabled children aged under 18. These parents have the right to apply to work flexibly - that is the hours, times and places they work. There is no statutory obligation placed upon an employer to agree to the request, but an employer must consider the request seriously, convene a meeting with the employee if it intends to refuse, and put reasons for refusal in writing. Even then, the employee can take the matter further, ultimately to tribunal, if he or she wishes.

The right enables mothers and fathers to request to work flexibly. It does not provide an automatic right to work flexibly as there will always be circumstances when the employer is unable to accommodate the employee’s desired work pattern. The right is designed to meet the needs of both parents and employers, especially small employers. It aims to facilitate discussion and encourage both the employee and the employer to consider flexible working patterns and to find a solution that suits them both. 

The Flexible Working (Eligibility, Complaints and Remedies) Regulations (2002, as amended 2006) provide that the person making the application must be an employee who:

  • Has been continuously employed for no fewer than 26 weeks;
  • Is either the mother, father, adopter, guardian or foster parent of the child or the partner of such a person;
  • Has or expects to have responsibility for the upbringing of the child.

If an organisation refuses the application, it has to state which of the grounds for refusal specified in section 80G (1) (b) of the Employment Rights Act 1996 apply. Permitted grounds are currently:

  • The burden of additional costs;
  • A detrimental effect on ability to meet customer demand;
  • An inability to reorganise work among existing staff;
  • An inability to recruit additional staff;
  • A detrimental impact on quality;
  • A detrimental impact on performance;
  • Insufficient work during the periods the employee proposes to work;
  • Planned structural changes.

The organisation is then required to give "sufficient explanation" of the grounds for refusal in the particular case. Not much guidance is offered as to what sufficient means, although it suggests a "couple of paragraphs" will usually be sufficient. Commonsense, however, dictates that the more thorough the explanation, the more chance there will be that the employee will not appeal the decision or wish to take it further. Note that in the event of a tribunal claim, the tribunal will be empowered to make a judgment about the sufficiency of the explanation given. 

It is possible to extend the time periods specified in the regulations provided the employee has agreed to this. You must record this agreement specifying which period is being extended and the date of the new time limit. This should be dated and a copy sent to the employee. 

If an employee requests to be accompanied by a colleague, that is a 'worker' employed by the same employer, at either an initial or appeal meeting, you must allow the colleague not only to attend the meeting but also to address it - although not to answer questions on behalf of the employee - and to confer with the employee. If the accompanying colleague cannot make the time originally proposed for the meeting, you must accept an alternative time convenient to all parties as long as it falls within a week of the original meeting time. If you refuse or threaten to refuse the employee's right to be accompanied, he or she can make a tribunal claim within three months and it can order compensation of up to two weeks' pay. 

Employment Tribunals do not have the power to question the employer's reasons for declining a request, as long as it has followed the correct procedure and given sufficient explanation of the business reasons. However, there will remain the option for employees wishing to challenge their employer's refusal in court to bring a claim under the Employment Rights Act 1996 and also a claim under the Equality Act 2010. 

Women, who are more likely to take advantage of this right than men, may be tempted to bring a claim of indirect sex discrimination. In this case, the employer would have to satisfy the tribunal that its refusal to allow the employee's request was justifiable, irrespective of the employee's sex. This is a test decided on objective standards and will allow the tribunal to challenge not just the employer's procedure, the reasons for refusal but also that it was also a proportionate means of achieving a legitimate aim. It would be wise, therefore, to ensure you have considered all options and alternatives before turning down a request. The final test, is to ask yourself whether requiring the person to work full time in the office is reasonable in all the circumstances.