30th May 2008   

INFORMATION
UPDATE

 Issue No.  2008/12

 Sentient
              

 

 RECENT GOVERNMENT ANNOUNCEMENTS

PROPOSED CHANGES TO FLEXIBLE WORKING
 
As seen in the media recently, the Government is to extend the Flexible Working provisions.
 
At the moment, the statutory right to request flexible working is open to employees with 26 weeks continuous service, providing they:
 
(1)   are carers who care, or expect to be caring, for a spouse, partner, civil partner or relative or someone who lives at the same address as the employee.  (A relative for this purpose is a mother, father, adopter, guardian, son, daughter, brother, sister, parent/son/daughter/brother/sister-in-law, uncle, aunt or grandparent.  Step-relatives and half-blood relatives are also included).  In relation to all the relatives mentioned, this includes adoptive relationships and relationships which would have existed but for an adoption i.e. the employee’s natural relatives.
 
OR
 
(2)   have parental responsibility (mother, father, adopter, foster parent, guardian, or a person who is married to, or the partner of, the mother, father, adopter, foster parent or guardian) of a child under the age of 6 (or under 18 if the child is disabled); AND they must be expected to have responsibility for the child’s upbringing and be making the application to enable them to care for the child. 
 
The proposal is to extend the statutory right to flexible working to employees with parental responsibility of a child under the age of 16.
 
This means that an extra 4.5 million parents in Britain will gain the right to request flexible working.  The government will now consult on implementing the proposal.
 
We remind employers that if an employee makes a request for flexible working, there is a set procedure that must be followed within a set time period.  Briefly:
 
  • The employee must make an application in writing (which must include: the relationship to the child/cared for person; the work pattern applied for; the proposed start date; the effect the employee thinks the proposed change would have on the employer and how the effect might be dealt with; details of any previous application for flexible working including the date.)
  • The employer must acknowledge the application in writing and arrange a meeting within 28 days.
  • The employer and employee meet to discuss the desired work pattern in depth and consider how it may be accommodated.  If the employee’s request cannot be accommodated, try and find an alternative work pattern that may be acceptable to both employer and employee. Take minutes of the meeting. The employee has the right to be accompanied by a working colleague or trade union official at the meeting.
  • The employer must make a decision on the request and confirm the decision in writing, dated, within 14 days of the meeting.
  • If the request is refused in full or in part, the employee has the right to register an appeal against the decision.  If the employee registers an appeal, the employer should arrange an appeal hearing.
 
There is no automatic right for the request to be granted,
but employers must consider the request seriously.
 
If the request is accepted - confirm the change in working pattern and the date that the new working pattern takes effect. The change is a permanent change to the contract.  The employee does not have the automatic right to revert to the original contracted hours once the employee ceases to have childcare responsibilities. 
If the request is refused – the Employer should provide the business ground(s) with sufficient explanation for refusing the application, and provide details of the employee’s right to appeal the decision. 
 
Should the employer refuse to agree to the request, the employee could challenge the decision before an Employment Tribunal where the employee could be awarded compensation if the Tribunal concludes that the employer does not have a ‘sound business reason’ for refusing the request and/or if the employer has not followed the correct procedure.  Therefore, should you receive a request for Flexible Working, we suggest you seek advice.

 

 

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