Course Aims:

This course should give an invaluable grounding in the law establishing the Right to Request Flexible Working. The 2 hour course offers 2 CPD points is aimed at employment professionals with a moderate knowledge of employment law.  There is a set of multiple choice questions, which must all be answered correctly if the points are to be awarded.

Intended Learning Outcomes:

On completion of this course, you will have:
An understanding of the evolution of the policy and law behind Flexible Working Requests;

An understanding of the legal definition of the Request for Flexible Working;

The types of request covered by the law and the procedure, which must be followed by the employee and employer respectively;

When an employer can refuse a request;

The Legal Redress available to an employee;

Criticisms of the law on the area as it stands.







The Right to Request Flexible Working

The employment Act 2002 was the pioneering legislation which gave a new right to employees to request a change in their terms and conditions of employment in order to allow them to work from home. All of the main political parties have promised to extend this right as more and more people are beginning to appreciate this new 'family friendly' way of working.

The right was initially introduced with a view to helping those with a young or disabled child. The right has twice since been expanded to encompass a child up to and including the age of 16 or who is disabled and those who have caring responsibilities for an adult relative within one of the prescribed categories of relationship. These recommendations were accepted by the Government in August 2008, and put into effect by the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009, SI 2009/595, which amend reg 3A of the Eligibility Regulations with effect from 6 April 2009

What is the Right?

The right is to request to work flexibly, not necessarily to be granted the request. However, whilst the right applies equally to employees of either sex, it is inescapable in practice that whilst the burden of childcare, and hence the need to be able to work under more flexible working arrangements, falls in practice primarily on the mother. Details of the new right are set out in ERA 1996, Part 8A, which is largely enabling, and in regulations made thereunder (the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236: 'the Eligibility Regulations') and the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207: 'the Procedure Regulations'). 

The Employee can only make a request every 12 months.

Types of Request Made

The right is not only a right to request part-time working, albeit this is in practice the commonest feature of requests made. The Act provides for three types of change (ERA 1996 s 80F(1)(a);

an employee may request a change to working hours or to the times when he or she is required to work, 

or to work from home (for some or all of the time), 

or any combination of these. Thus the request may be concerned with several different aspects of a working regime. Changes to shift patterns, job-sharing, flexitime, home working, term-time only working and annualised hours are all examples of what might be covered by a request.


Procedure

Who Can Make the Request?

Employees (of either sex) who have the required qualifying service (the right is available only to employees within the definition in the ERA 1996), and have parental responsibility of a child under 17 at the date of the request (or a disabled child under 18) or caring responsibilities for a relevant adult, may make a formal request for flexible working arrangements. The last date for making a request is the day before the child's 17th (or, as the case may be, 18th) birthday. 

The rights apply to those in Crown employment (but not those in the armed forces) and to Parliamentary staff. The right also applies to those in police employment (they are not excluded by ERA 1996 s 200, but police officers are excluded from these provisions by virtue of their status as office holders rather than employees). Share fishermen and fisherwomen are excluded from the right by ERA 1996 s 199. 

In order to make a request in relation to caring for a child an employee (male or female) must be qualified in terms of ERA 1996 s 80F(1) and the Eligibility Regulations, SI 2002/3236 regs 3 and 3A. These requirements are that the applicant must:

'be a parent (natural, adoptive or foster) or guardian of a child under six, or under 18 in the case of a disabled child, or be married to or the civil partner of a person who is such a parent or guardian; 

have worked with the employer continuously for 26 weeks at the date the application is made; 

make the application no later than the day before the child's seventeenth birthday (or 18th birthday in the case of a disabled child); 

have or expect to have responsibility for the child's upbringing;
 
not have made another statutory application to work flexibly during the past 12 months;

have, as his or her purpose for applying for the change, to enable him or her to care for someone who is, at the time of the application, a child in respect of whom he or she has childcare obligations'.

The details of the parental relationships entitling an employee to make a flexible working application are set out in reg 3 of the Eligibility Regulations, together with the definitions of terms used in reg 2(1).


Requests to Look After Adults

In order to make a request in relation to caring for an adult, an employee must be qualified in terms of the ERA 1996 s 80F(1) and the Eligibility Regulations SI 2002/3236 reg 3B. That means that he or she must:

be an employee;

have worked for the employer continuously for 26 weeks at the date the application is made;

be or expect to be caring for a person in need of care who is either: (i) married to or the partner or civil partner of the employee; (ii) a relative (as defined in reg 2) of the employee; or (iii) living at the same address as the employee;

have, as his or her purpose for applying for the change, to enable him or her to care for someone within the categories specified above who is, at the date of application, aged 18 or over.

The term 'relative' is defined in SI 2002/3236 reg 2(1) to cover parents, adopters and guardians, children, siblings, uncles, aunts and grandparents (but not nephews, nieces or grandchildren), the equivalent step relationships, and relationships of half blood and in-law relationships, as well as adoptive relationships.

Procedure

An employee who seeks a change in working conditions must do so in writing (including email and fax). 

Only one request may be made within any one year;  

 In the case of a child, the application must be made no later than the day before the child reaches the age of 17, (or if disabled, 18: see the Eligibility Regulations, SI 2002/3236 reg 3A); there is no equivalent time limit for the making of applications to care for an adult relative.

The application must state if and when a previous application has been made, and it must be signed and dated (Eligibility Regulations, SI 2002/3236 reg 4).



What the Employer Must Do

The employer has a wide range of reasons they can give to say no but they are obliged to consider the request, and to invite the employee to a meeting to discuss it. , and the employer must give the employee a decision on the request, with reasons if the request is not acceded to. The Procedure Regulations, SI 2002/3207 reg 5(b)(ii), state that the employer's decision letter must contain 'a sufficient explanation as to why [the grounds relied on] apply in relation to the application'; an equivalent requirement is applied at the appeal stage by SI 2002/3207 reg 10(b)(ii).

Timetable

Following the submission of a flexible working request, the employer must arrange to meet with the employee within 28 days (Procedure Regulations, SI 2002/3207 reg 3(1); no meeting is required if the employer notifies the employee that the request is accepted: reg 3(2)). This meeting is intended to provide the employer and the employee with the opportunity to explore the desired work pattern in depth, and to discuss how best it might be accommodated. It is also intended to provide an opportunity to consider other alternative working patterns should there be problems in accommodating the desired work pattern outlined in the employee's application.The details of the rights of accompaniment, including rights to time off for the companion, and to postponement of a scheduled meeting to enable the companion to attend, are in the Procedure Regulations, SI 2002/3207 reg 14.

Within 14 days after the date of the meeting the employer must write to the employee, either agreeing to the requested new work pattern and giving a start date, or giving reasons for refusing the request, and advising the employee of the right of appeal (Procedure Regulations, SI 2002/3207 regs 4, 5). The employee's right of appeal is exercisable by giving notice in writing (specifying the grounds of appeal, and dated) within 14 days of the notice of the decision (SI 2002/3207 regs 6, 7). The procedure on appeal is essentially a repeat of the initial procedure: there must be a meeting, within 14 days of the notice of appeal being submitted, and with the employee having the same right of accompaniment. A decision in writing, with reasons if unfavourable to the appellant, must be given within 14 days of the meeting (SI 2002/3207 regs 8–10).

Any time limits imposed by the Regulations may be extended by agreement of the parties, often seen where an employer needs time to investigate the practicability of proposed working arrangements. However, any extension must be recorded in writing, and sent to the employee, to be effective (Procedure Regulations, SI 2002/3207 reg 12). 

There is an automatic extension where the person within the employer who would ordinarily consider an application is absent on annual or sick leave (SI 2002/3207 reg 13). The extension postpones the running of time against the employer until the person returns to work, but the postponement is limited to a maximum of 28 days. The Procedure Regulations also provide that the time and place of meetings must be convenient to employer and employee (SI 2002/3207 reg 11). In addition, the employer is entitled to treat a flexible working application as withdrawn not only if the employee so states (orally or in writing) but also if he or she fails, without reasonable cause, to attend a statutory meeting or to provide information needed by the employer to assess whether the proposed arrangements can be agreed (SI 2002/3207 reg 17). The scope of the last point has yet to receive any judicial consideration.


When Can the Employer Refuse?

The request is just that; there is no entitlement to have it granted. But the employer may only refuse it if he considers that one or more of a number of specified grounds (specified in ERA 1996 s 80G(1)(a)) applies. :
		•  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;
		•  planned structural changes;
		•  such other grounds as may be specified in regulations (as at 1 January 2010, no further grounds have been specified).



Right to Accompaniment 

The employee is entitled to be accompanied at the meeting by a fellow employee (but not a trade union officer unless the person chosen is also a fellow employee). The employee also has the right of appeal if his or her request is not granted, and the same entitlement to a meeting and right of accompaniment applies at the appeal stage. 

Contractual Status of Variations

If the request is granted, the agreed working arrangements take effect as a variation to the employee's contract of employment. 
It should be noted that this change is indefinite in its effect unless agreed with a time limit. Importantly, the employee does not revert to the former terms and conditions simply because the circumstances giving rise to the request have ceased to apply. Although commonly seen there is no provision for trial periods for new arrangements. 

Legal Redress

The employee is limited to the following forms of redress:

has the right of complaint to an employment tribunal if the employer fails to follow the procedure outlined above, or if he or she is dismissed or subjected to a detriment by reason of having made the request; a complaint may also be brought on the ground that the reasons given for refusing a request are factually incorrect. 

Remedies

The employee may complain to an employment tribunal under ERA 1996 s 80H either that the employer has failed to comply with the duties imposed by s 80G(1) or that he has based his rejection of the application on incorrect facts. The latter category of complaint can only be made:

a) Once the employee's request has been rejected following an internal appeal;

b) Within three months of either the date when the employee was notified of the appeal decision or the date on which the alleged breach of duty was committed, as the case may be. 

The time limit may be extended by a reasonable period if the tribunal is satisfied that it was not reasonably practicable for the employee to claim in time (s 80H(5)(b)).

If it finds a complaint, either of breach of the procedures or of giving factually incorrect reasons for rejecting a request, well-founded, a tribunal must make a declaration to that effect, and may award compensation not exceeding a maximum of eight weeks' pay. The statutory cap on a week's pay does not apply for these purposes. 

However, an employer who refuses to entertain a request on inadequate grounds may face a claim of indirect (or even direct) sex discrimination, or a claim of constructive dismissal based on unjustified undermining of trust and confidence; If for example an employer gives an indication that they will offer a trial for flexible working but indicates that they do not believe that it will work they could face a successful claim for anticipatory breach of contract relied upon in a constructive dismissal case.

It is not however possible to base a claim for failure to make reasonable adjustments under the DDA 1995 on a refusal to agree a request for flexible working made under the statutory provisions, even if the purpose of the flexibility requested is to care for a disabled relative or child; the concept of associative discrimination established by the ECJ in Attridge Law v Coleman [2008] IRLR 722 does not extend to the making of reasonable adjustments, which can only be required where the employee himself or herself is disabled (see as to this the subsequent decision of the EAT in EBR Attridge Law LLP v Coleman [2010] IRLR. 

These possible avenues of redress open to the Claimant make the duty to give full, clear reasons for a refusal particularly important.


Criticisms

Some polemicists have suggested that the employer has too much power to refuse a request for flexible working and that all the employer must do is ostensibly jump through a few legal hoops before declining the request.

Further, women generally are more likely to take on the burden of childcare and therefore refusal to accept or entertain requests is likely to encourage accusations of indirect sex discrimination.

Trial periods are often requested by employers before granting a Flexible Working Request, where, for instance the employer has doubts about the viability of the proposed arrangements; however the statutory scheme has been denigrated for not making any provision for the employer to respond to a request by proposing a trial, or offering a time-limited change in hours etc.

The fact that only one request can be made per year is restrictive. There is no statutory right to make a further request following a (successful or unsuccessful) request until a year has passed since the request was made, even if the employee's circumstances have changed or the request is made for the purpose of caring for a person other than the person in respect of whom the previous request was made. This inflexibility allows no leverage for the carer who, for instance, has too look after their baby and then discovers that their partner has become incapacitated.

The tribunal has no power to order the employer to comply with the request for flexible working.




Multiple Choice Questions

Please Select One Answer:


1)  The right to request flexible working has twice since been expanded to encompass;

a)  a child up to and including the age of 16 or who is disabled.
b) a child up to and including the age of 14 or who is disabled.
c) a child up to and including the age of 16 only.


2) The following can make the request;

a) employees (of either sex) who have the required qualifying service (the right is available only to employees within the definition in the ERA 1996).
b) any worker
c) any employee or worker.

3) The person making the request must:

a) have worked for the employer for a year;
b) have worked with the employer continuously for 26 weeks at the date the application is made; 
b) have worked for any period for the employer.

4) An employment tribunal; 

a) has no power to order the employer to comply with the request for flexible working;
b) can request that an employee comply with the request;
c) can only request that the employer must comply with the request under certain circumstances.

5) Requests may be made:

a) whenever it becomes pertinent;
b) twice a year;
c) once a year

6) Following the submission of a flexible working request, the employer must arrange to meet with the employee:

a) within 28 days;
b) within 30 days;
c) Whenever it is reasonable.

7) Any time limits imposed by the Regulations may be extended:

a) Only with permission of an employment tribunal;
b) by agreement of the parties;
c) never

8) The employee also has the right of appeal:

a) if his or her request is not granted;
b) on application to a tribunal;
c) Never

9) An employee who seeks a change in working conditions must do so;

a) quickly without delay;
b) in writing (including email and fax).
c) orally or in writing.

10) Any agreed change, as a response to a request is:

a) indefinite in its effect unless agreed with a time limit;
b) only in existence for 26 weeks
c) exists for a year. 

11) Reasonable adjustments claims under the DDA 1995;

a) can be based on a refusal to agree a request for flexible working made under the statutory provisions.
b) cannot be based on a refusal to agree a request for flexible working made under the statutory provisions.

12) The employer may only refuse a request under flexible working if:
a) an employment tribunal orders it
b) It falls under ERA 1996 s 80G(1)(a)
c) He has given it reasonable consideration.