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FLEXIBLE WORKING (Page 1)

The law:
Sex Discrimination Act 1975, s.1;
Employment Act 2002, s.47 - that inserts into the -
Employment Rights Act 1996, s.47E; s.80F-I; and s.104C ('Flexible Working');
more specifically see the -
Flexible Working (Procedural Requirements) Regulations 2002, SI 2002/3207; and the
Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002, SI 2002/3236;
Employment Relations Act 2004, s.41 ('Flexible Working') - s.41 applies from 06 April 2005.
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Guidance: a detailed guidance entitled 'Flexible working: The right to request and the duty to consider' can be found on the website of the DTI www.dti.gov.uk - or - telephone ACAS: 0845-747-47-47. ACAS is the government Advisory, Conciliation and Arbitration Service that provides free employment law advice and guidance to employees and employers.

What does this law do?
From the 06 April 2003, the law gives:

* eligible parents and others with parental responsibilities for the care of a child or children
under the age of six or, if a disabled child or children, under the age of eighteen, the
statutory right to (merely) request flexible working to help them fulfil childcare
responsibilities; and

* requires employers to (i) consider seriously flexible working requests made by their
employees and, when doing so, (ii) requires them to follow the statutory procedure
and, after considering requests, (iii) if refusing requests for flexible working, to do so only
on one or more of the statutory business grounds set out in the legislation.

The policy or reasons for the law:
during recent years, the UK government has pursued a policy of awarding statutory employment rights to parents to enable them to join or stay in the paid labour market while, at the same time, enabling them to fulfil their childcare responsibilities. Working flexibly, rather than giving up paid work, benefit working parents by giving them a higher income and a higher status that that of non-working parents whose family incomes may be reduced to that of one earner or State benefits. Likewise, employers and the economy benefit when employees with marketable skills and abilities are able to remain in work albeit by working fewer hours or on a flexible working pattern or from home. At the time the law was introduced (06 April 2003), a 'Regulatory Impact Assessment' made by the DTI estimated that nearly four million employees in the UK would benefit from the right to apply to work flexibly. By introducing this new set of statutory rules, the government's intention is that the traditional view held by many employers, which is that flexible working is incompatible with business efficiency, will change when employers are required to consider seriously applications made by their employees to work flexibly and, that by agreeing to requests, both employers and employees as well as the economy as a whole will benefit.

When an employee makes a request to the employer to allow her or him to work flexibly, what he or she is doing is asking for a 'contractual variation.' In other words, the employee is requesting a variation of the terms and conditions of the contract of employment that exists between the employee and the employer. Periodically, employers often ask their employees to agree a variation to terms and conditions when an employer wants to change shift patterns or hours worked. A well-advised employer will include a flexibility term in contracts of employment that gives the employer the contractual power to vary terms and conditions. But if there is no such term and the employer cannot get the affected employees to agree to a variation then the employer - usually after receiving legal advice that it is reasonable to do so - will often impose the variation upon the employees. Those who refuse to agree a variation may be dismissed and immediately re-engaged on new contracts which contain the varied terms and conditions. An employment tribunal will reject a complaint of unfair dismissal from an employee dismissed this way if the tribunal finds that the employer acted reasonably by dismissing the employee. Likewise, an employee can (in theory at least), impose a reasonable variation upon the employer but, in practice, most tribunals are likely to reject an employee's claim that he or she has been constructively unfairly dismissed when the employer rejects the attempted variation. This is the reason why a statutory procedure has been introduced that enables an employee to formally require an employer to consider seriously a request for a variation of the employment contract (in this case, for flexible working) and, when doing so, requires the employer to give clear business reasons for refusing the variation and also requires the employer to provide the employee with the opportunity to appeal against the decision.

Note: the law does not give employees the right to demand flexible working. Instead, it merely gives employees the right to trigger a statutory procedure that employers must then follow. Upon hearing a complaint brought by an employee, an employment tribunal will only be able to find against the employer's decision to refuse an application for flexible working when the employer (i) fails to follow the statutory procedure or (ii) states a business reason based on incorrect facts or (iii) gives an impermissible reason. The rules do not enable a tribunal or an employee to compel an employer to adopt flexible working practices.

Definition of 'flexible working'.
The right that employees have under the Flexible Working Regulations is to request changes to the terms and conditions of the contract of employment which must relate to: -

* the hours that an employee is required to work;

* the times at which an employee is required to work;

* the place at which an employee is required to work; and

* such other aspect of the terms and conditions of employment as the Secretary of State may
specify by Regulations: s.80F, Employment Rights Act 1996.

At the time the legislation was proceeding through Parliament, the view of the government was that the Regulations would encompass all the usual types of working patterns such as part-time, flexitime, job-share, compressed hours, term-time working, shift-work, staggered hours, annualised hours, self-rostering and home-working.

Eligibility:
employees who are eligible to make requests for flexible working are defined under the Employment Rights Act 1996 and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 as being an employee who: -

* has been employed by the employer continuously for at least 26 weeks by the date that the
application for flexible working is made (this 26-weeks requirement is important to
remember if a claim needs to be made);

* is the mother, father, adopter, guardian or foster parent of the child or is married to or the
partner of the child's mother, father, adopter, guardian or foster parent; and

* expects to have responsibility for the child's upbringing: Reg.3.

Note: the right is restricted to employees who have a child that is under the age of six or, if the child has a disability, under the age of eighteen: s.80F(3), ERA 1996.

Note: agency workers who are employees are not eligible to make a request for flexible working: s.80F(8)(a), ERA 1996.

Note: same-sex couples, regardless of whether they have or have not entered into a statutory contractual civil partnership, have the right to request flexible working the same as opposite-sex couples do: Reg.2(1).

The statutory procedure for making a request for flexible working: -
this is triggered by an employee who wants to vary the terms and conditions of the contract of employment so that she or he can work flexibly. In order to do so, the employee must make the request by way of a formal application in writing to the employer and the application must state the required specific information. To help an employee, the DTI has published a number of standard forms on its website - www.dti.gov.uk - which both the employee can use when making an application as well as the employer when considering a request. The forms are not mandatory. However, if an employee fails to follow the correct statutory formalities, the employer will not be under any legal obligation to give consideration to the request in accordance with the statutory procedure: Hussain v Consumer Credit Counselling, ET Case No.1804305/04.

Specifically, the statutory formalities are that an application for flexible working must: -

* be in writing either on paper or in electronic form;

* be dated;

* specify the change requested;

* state the date on which the proposed change should take effect;

* state the date of any previous application(s); and

* expressly state that the application is an application to work flexibly under the flexible
working procedures as stated by s.80F, Employment Rights Act 1996;

* contain a statement by the employee stating what effect, if any, she or he thinks the
proposed change will have on the employer and how the employer may deal with any such
change;

* in addition, the employee must self-certify that the relationship she or he has with the child,
for whom the benefit to work flexibly is sought, entitles the employee to make the request.

But the employee is not required to explain furthermore why she or he needs to work
flexibly. Thus, no more than the required statutory relationship need be stated. This is
because the government felt that it would be too intrusive to require employees to state
more, such as giving details of their personal circumstances, which could then lead to the
employer reviewing the details of the employee's private life.

When to make a request for flexible working:
an employee who has parental responsibility for a child has the statutory right to make a request to work flexibly only if she or he ensures that such a request is received by the employer at least 14 days before the child's 6th birthday or, if the child has a disability, before the child's 18th birthday: s.80F(3), ERA 1996.

Note: this requirement applies only to when a request must made; not to when the change to flexible work is made. In other words, so long as a request for flexible working is made before the child's 6th birthday (or if the child has a disability her or his 18th birthday), the change can come into effect after the child's 6th birthday and while the child remains a child (or an adolescent if disabled). A 'child' is a young person of less than 15 years of age and who is still subject to compulsory full-time schooling under national law: Art.3(b), Young Workers' Directive 93/33/EC; s.8, Education Act 1996. An 'adolescent' is a young person of at least 15 years of age but less than 18 years of age who is no longer subject to compulsory full-time schooling under national law: Art.3(c), Young Workers Directive 94/33/EC.

Note: when making an application to the employer for flexible working, an employee can make only one request a year: s.80F(4), ERA 1996. [Reason for rule: to limit the costs which employers unavoidably incur when processing applications]. But an employee who fails to properly comply with the statutory procedure (as happened in Hussain v Consumer Credit Counselling, ET Case No. 1804305/04) is able to resubmit a new flexible working request. This compels the employer to go through the complete statutory procedure again as s.80F(4) does not apply in such circumstances.

Note: where the employer agrees a variation to the employee's contract so that she or he can work flexibly, such changes are permanent and the employee has no right to revert to her or his previous terms and conditions. Reduced hours of work are likely to mean reduced pay. But note that in the context of terms, conditions and benefits, employers must not treat part-timers less favourably, pro rata, than comparable full-timers. See: Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

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