DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
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Fax: +44 (0) 161 834 6862

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FLEXIBLE WORKING

Parents of children aged under six or of disabled children aged under 18 have the right to apply to work flexibly. In such circumstances employers are under a statutory duty to consider employee’s applications seriously.

This 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 a request for a desired work pattern. The right is designed to meet the needs of both parents and 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 employee has a responsibility to think carefully about their desired working pattern when making an application, and the employer is required to follow a specific procedure to ensure requests are considered seriously.

Eligibility

In order to make a request under the new right the parent must:

  • be an employee
  • have a child under six, or under 18 in the case of a disabled child
  • have been continuously employed by the employer for at least 26 weeks at the date your application is made
  • make the application no later than two weeks before the child’s sixth birthday or 18th birthday in the case of a disabled child
  • have or expect to have responsibility for the child’s upbringing
  • be making the application to enable the parent to care for the child
  • not be an agency worker
  • not have made another application to work flexibly under the right during the past 12 months.

The Application can only be made to assist the employee in caring for a child (e.g. to enable the parent to spend more time with his or her children or to enable him or her to drop their child off at school). Applications cannot be made for any other purpose.

Both mothers and fathers, whether they are the biological parents or legal guardians, can make applications, as can adoptive parents. Spouses or partners of such employees are also eligible, including spouses or partners of the same sex as long as they have or expect to have responsibility for the upbringing of the child.

Scope of a request

Eligible employees will be able to request:

  • a change to the hours they work
  • a change to the times when they are required to work
  • to work from home (whether for all or part of the week).

This covers working patterns such as annualised hours, compressed hours, flexitime, homeworking, job-sharing, self-rostering, shift working, staggered hours and term-time working.

The Procedure

Employees are required to follow the procedure set out below:

1. The initial onus will be on the employee to make a considered application in writing. The employee will be able to make only one application a year, and an accepted application will mean a permanent change to terms and conditions of employment. It will be important therefore that, before making an application, the employee gives careful consideration to which working pattern will help best care for the child; any financial implications it might have on in cases where the desired working pattern will involve a drop in salary; and any effects it will have on the employer’s business and how these might be accommodated. When making an application the employee should use or follow the same format as the form attached as Schedule 1 below. This should be submitted to the employer. If the application is incomplete the employer should identify what information the employee has omitted and the employee asked to resubmit the application. In such circumstances the employer is not obliged to consider an application unless and until it is complete and re-submitted.

2. Within 28 days the employer should arrange to meet with the employee. This will provide both 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 will also provide an opportunity to consider other alternative working patterns should there be problems in accommodating the principle desired work pattern outlined in the initial application.

The employee is entitled to be accompanied by a work colleague at this meeting wish who is entitled to address the meeting and confer with the employee but who is not allowed to answer questions on the employee’s behalf. If the chosen colleague is unable to attend the meeting the employee should seek to rearrange the meeting for a date within 7 days of the originally proposed time, ensuring the new time is convenient to all parties. Alternatively, the employee should consider choosing another work colleague.

Prior to the meeting employers are advised to:

  • make a list or draft an agenda of the issues the employer wants to discuss at the meeting
  • inform the employee of anyone the employer has asked to join the meeting e.g. a Human Resources Manager
  • ascertain from other workers whether they would be prepared to cover any extra hours that may be created as a result of granting the request
  • take professional advice if unsure about the options

The meeting should usually be held at the Employer’s premises. However, in the case of a mother returning from maternity leave who has requested flexible working upon her return it may be that she will find it difficult to travel to the workplace in which case the employer should discuss a more convenient place to meet.

At the meeting the discussions should focus on the possibility of how the desired work pattern might be implemented, or, whether other alternative working patterns might be possible should there be problems in accommodating the desired work pattern outlined in the employee’s application. The employer should keep notes of the discussions at the meeting. However, no decision should be taken or communicated to the employee at the meeting itself.

3. Within 14 days after the date of the meeting the employer should write to the employee to either agree to a new work pattern and a start date; or to provide a clear business ground(s) as to why the application cannot be accepted and the reasons why the ground(s) applies in the circumstances. Once again this time limit can only be extended with the express agreement of the employee and employers should ensure that they obtain this in writing using the form at Schedule 2 below.

4. If the application for a new working pattern is to be accepted the employer should first:

  • check to see if the employeecheck to see if the employee’
  • check that all health and safety requirements have been satisfied (this might be particularly relevant where the employee is to work from home)
  • consider who else the employer needs to inform, including the employee’s other work colleagues

Employer’s should use the form at Schedule 3 below to confirm acceptance of the new working pattern.

5. If the application for a new working pattern is to be rejected employers will first need to identify one or more of the following grounds as a business reason for the refusal:

  • the burden of additional costs on the employer
  • the detrimental effect on the employer’s ability to meet customer demand an inability to re-organise work amongst existing staff
  • a detrimental effect on quality or performance
  • a lack of work during the periods the employee has proposed to work
  • any planned structural changes which the employer is proposing to introduce

The employer should use the form at Schedule 4 below when notifying the employee of the employer’s rejection of the application. This must be in writing and dated stating:

  • the business ground(s) why the request cannot be accepted including relevant and accurate facts
  • an explanation of why the business reasons apply in the circumstances
  • the employee’s right of appeal against the decision and the appeal procedure

6. The employee is entitled to appeal against the employer’s decision. The employee must appeal within 14 days of notification of the employer’s decision. The appeal should be in writing setting out the grounds for making the appeal. This appeal process is designed to be in keeping with the overall aim of encouraging both the employer and employee to reach a satisfactory outcome at the workplace.

7. The employer should arrange for the appeal to be heard within 14 days of receipt of the employee’s Notice of Appeal. This time limit can only be extended with the express agreement of the employee and the employer should ensure this is obtained in writing using the form at Schedule 2 below.

The employee is entitled to be accompanied by a work colleague at this meeting who is entitled to address the meeting and confer with the employee but who is not allowed to answer questions on the employee’s behalf. If the chosen colleague is unable to attend the meeting the employee should seek to rearrange the meeting for a date within 7 days of the originally proposed time, ensuring the new time is convenient to all parties. Alternatively, the employee should consider choosing another work colleague.

8. The employer should notify the employee in writing of the outcome of the appeal within 14 days of the appeal hearing using the appropriate form at Schedule 5 below. If the appeal is upheld the employee will be notified of the new working pattern and a start date. If the appeal is rejected the employer should advise the employee in writing and dated stating:

  • the ground(s) for the decision which should be appropriate and in response to the employeethe ground(s) for the decision which should be appropriate and in response to the employee’
  • an explanation as to why the ground(s) for refusal apply in the circumstances. The same principles apply as to what is a sufficient level of explanation at appeal as the amount of appeal that should be given following the initial decision (see paragraph 3 above).

A written Notice of Appeal Outcome constitutes the Company’s final decision and is effectively the end of the formal procedure. There is no further right of appeal.


SCHEDULE 1

1. Personal Details

Name:……………………………………………………..

Manager:………………………………………………….

Staff/ Payroll Number:……………………………………

National Insurance No.:………………………………….

To the Company

I would like to apply to work a flexible working pattern that is different to my current working pattern. I confirm that I meet each of the eligibility criteria as follows:

  • I have responsibility for the upbringing of a child under six, or under 18 in the case of a disabled child.
  • I am:
    • the mother, father, adopter, guardian or foster parent of the child; or
    • married to or the partner of the child’s mother, father, adopter guardian or foster parent.
  • I am making this request to assist my care of the child.
  • I have been continuously employed by the Company for at least 26 weeks.
  • I am making this request no later than two weeks before the child’s sixth birthday or 18th birthday in the case of a disabled child.
  • I am not an agency worker
  • I have not made a request to work flexibly under this right during the past 12 months.

2a. My current working pattern is as follows (days/hours/times worked):

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

2b. I would like to work the following working pattern in the future
(days/hours/times worked):

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

2c. I would like this working pattern to commence from:

Date:……………………………………….


3. I think this change in my working pattern will affect my employer and colleague as follows:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

4. I think the effect on my employer and colleagues can be dealt with as follows:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

Company’s Confirmation of Receipt

Dear:…………………………………………..

I confirm that I received your request to change your work pattern on:

Date:…………………………………………..

I shall be arranging a meeting to discuss your application within 28 days following this date. In the meantime you should consider whether you would like a fellow colleague to accompany you at the meeting in which case you should check whether they are willing to attend.


From:…………………………………………

SCHEDULE 2

Dear………………………………………….

Staff Number:……………………………….

I wish to extend the amount of time that the regulations allow me to:

  • Arrange a meeting to discuss your application (28 days)
  • Notify you of my decision regarding your application (14 days)
  • Arrange a meeting to discuss your appeal (14 days)
  • Notify you of my decision regarding your appeal (14 days)

I wish to extend the time limit by [ ] days until [ ].

I need the extra time for the following reason:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

If you agree to this extension please sign and date the enclosed copy of this letter and return it to me.

Signed:………………………………………

Dated:……………………………………….

I accept your request to extend the amount of time until [ ].

Signed:………………………………………

Dated:……………………………………….

SCHEDULE 3

Dear:………………………………………….

Staff Number:……………………………….

Date:………………………………………….

Following receipt of your application and our meeting on [ ] I have considered your request for a new flexible working pattern.

[ ] I am pleased to confirm that I am able to accommodate your application.

[ ] I am unable to accommodate your original request. However, I am able to offer the alternative pattern which we have discussed and you agreed would be suitable to you.

Your new working pattern will be as follows:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

Your new working arrangements will begin from [ ].

If you have any questions on the information provided on this form please contact me to discuss them as soon as possible.

Note to employee

Please note that the change in your working pattern will be a permanent change to you terms and conditions of employment and you have no right in law to revert back to your previous working pattern.

I have read and understood the above change to my working pattern and I agree that the new working pattern will constitute a permanent change to my terms and conditions of employment with the Company.

Signed:………………………………………

Dated:……………………………………….

SCHEDULE 4

Dear:………………………………………….

Staff Number:……………………………….

Date:………………………………………….

Following receipt of your application and our meeting on [ ] I have considered your request for a new flexible working pattern.

I regret that I am unable to accommodate your request for the following business ground(s):

[ ] the burden of additional costs on the Company
[ ] the detrimental effect on the Company’s ability to meet customer demand
[ ] an inability to re-organise your work amongst existing staff
[ ] a detrimental effect on quality or performance
[ ] a lack of work during the periods you have proposed to work
[ ] a planned structural change which the Company is proposing to introduce

The grounds apply in the circumstances because:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

If you are unhappy with the decision you may appeal against it. Details of the appeal procedure are set out below.

The Appeal Process

You have the right to appeal against the above decision. If you wish to appeal you must do so in writing, setting out the grounds for your appeal, within 14 days of receiving the above written notice.

SCHEDULE 5A

Dear:………………………………………….

Staff Number:……………………………….

Date:………………………………………….

Following our meeting on [ ] I have considered your appeal against the decision to refuse your application to work a flexible working pattern.

I accept your appeal against the decision. I am therefore able to accommodate your original request to change your working pattern as follows:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

Your new working arrangements will begin from [ ].

If you have any questions on the information provided on this form please contact me to discuss them as soon as possible.

Note to employee

Please note that the change in your working pattern will be a permanent change to you terms and conditions of employment and you have no right in law to revert back to your previous working pattern.

I have read and understood the above change to my working pattern and I agree that the new working pattern will constitute a permanent change to my terms and conditions of employment with the Company.

Signed:………………………………………

Dated:……………………………………….

SCHEDULE 5B

Dear:………………………………………….

Staff Number:……………………………….

Date:………………………………………….

Following our meeting on [ ] I have considered your appeal against the decision to refuse your application to work a flexible working pattern.

I regret that I must reject your appeal for the following ground(s):

[ ] the burden of additional costs on the Company
[ ] the detrimental effect on the Company’s ability to meet customer demand
[ ] an inability to re-organise your work amongst existing staff
[ ] a detrimental effect on quality or performance
[ ] a lack of work during the periods you have proposed to work
[ ] a planned structural change which the Company is proposing to introduce

The grounds apply in the circumstances because:

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………

Signed:…………………………………………

Dated:………………………………………….

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