Flexible Working Rights from 6 April 2009

From 6 April 2009 the right to request flexible working is extended to carers of children under 17 from the previous age of under 6. The right for carers of disabled children remains unchanged at applying to children under 18. The right is only available to employees with parental responsibility who have been continuously employed for no less than 26 weeks. This is only a right to request flexible working but employers can only refuse on grounds of either: 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; or planned structural changes.

The Request Procedure

The request must be in writing and specify it is an application for flexible working under the flexible working provisions in the Employment Rights Act 1996. It must set out the change requested, eg change of hours, start or finish time etc; the date the change should take effect; the effect, if any, it will have on the employer and how that might be dealt with; and how the employee meets the eligibility criteria. Only one valid request can be made per employee per year.

Meeting to Consider Request

An employer must hold a meeting within 28 days of the request unless, within 28 days they send written notice agreeing to the request. The employee must be notified of the decision within 14 days from the meeting in writing. If the decision is to agree the request, the notice must be dated, specify the agreed changes and when they will take effect. If the request is refused the notice must state which of the permitted grounds for refusal apply. The employee has the right to appeal and the appeal procedure must be set out in the employer’s written notice.

Appeals

An appeal must be in writing within 14 days of the decision and state the grounds of appeal and an appeal meeting must take place within 14 days of the employee’s notice. The procedure comes to an end when the employee receives notification from the employer that his or her request has been rejected on appeal.

Employment Tribunal Claims

An employee can complain to an employment tribunal that:

• the employer failed to comply with the procedural requirements set out in the Regulations
• the employer rejected the employee’s application on a ground that was not a permitted business reason for refusal; or
• the employer based his decision to reject the request on incorrect facts

A Tribunal claim must be made within 3 months of the date the employee is notified of the decision on the appeal, or from the date of a breach of the Regulations. A Tribunal can order the employer to reconsider the request and award compensation of up to eight weeks’ pay. A week’s pay is capped at (currently) £350.00. The Tribunal cannot order an employer to agree to the flexible working request. Note that a refusal to permit flexible working may also involve indirect sex discrimination.

Requests for flexible working should be made using the application form on the DirectGov website where more detailed guidance will also be found at http://www.direct.gov.uk/en/Employment/Employees/Flexibleworking/index.htm.