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Wake-up call: Flexible working arrangements

20 March 2008 by
Wake-up call: Flexible working arrangements

The problem

One of my senior managers wants to change his working hours from full-time to part-time to look after his young family. I don't think this will fit in with the needs of the business. What are my obligations?

The law

The regulations governing flexible working came into force in April 2003. Employees with children under the age of six - or 18 if the child is disabled - have the legal right to apply to their employer to work more flexibly.

A request for a flexible working arrangement (FWA) must be made so that care can be provided for a child, and can involve changes to an employee's working arrangements, such as working hours, working days, or home working or flexi-time.

With effect from April 2007 flexible working requests were expanded to include the care of adults (defined as "near relatives") within the statutory FWA regime.

In order to be eligible, an employee must have joined the company at least 26 weeks before the request is made and must not have made another FWA request in the previous 12 months. There are also further requirements that relate to the employee's relationship with the person to be cared for.

Expert advice

If an employer agrees to a FWA, then the changes will have the legal effect of altering the employee's terms and conditions of employment permanently.

FWA requests made under the regulations must be made in writing and contain specific information about the proposed arrangement.

There is a set procedure, with timelines, to follow when dealing with requests. The employer must meet with the employee to discuss the request, at which meeting the employee can be accompanied by a work colleague. If the employer refuses to grant the request, then an appeal meeting must be arranged if the employee requests it.

Employers must seriously consider any FWA requests made - but they don't have to agree, if there are sound commercial reasons why they cannot. The regulations provide eight specific reasons for refusing a request that mainly relate to the needs of, and the effect on, the business.

Both parties can agree to flexible working arrangements without using the regulations, which will not apply to such arrangements. However, if the employee is not happy with this process, the statutory FWA regime is still open to them.

Check list

  • Address the request using the formal regime.

  • Adhere to the time scales provided in the regulations, giving clear reasons in writing if this is not possible.

  • Before deciding whether to accept or reject the request, consider whether a trial period would be useful.

  • Do not make assumptions that the request cannot be accommodated research, and prepare to discuss, your findings.

  • Consider whether you can suggest alternatives, such as compressed or staggered hours, if you feel you cannot accommodate the FWA request in its current form.

Beware!

An employment tribunal can award up to eight weeks' pay (capped currently at £330 per week) for any failures by an employer to follow the FWA regime.

An employer who refuses a request (even when using one of the eight permitted reasons) without relying upon specific and relevant reasons is open to the following challenges:

Sex discrimination As most FWA requests are made by women, sex discrimination claims can be made if the employer is found to have discriminated on grounds of sex in not considering the request properly.

Unfair dismissal An employer's failure properly to address the request might risk the employee resigning and filing an unfair dismissal claim.

Contacts

Anne Edwards, employment solicitor, Bracher Rawlins

020 7404 9400

Acas

www.acas.org.uk

Business Enterprise and Regulatory Reform (formerly DTI)

www.berr.gov.uk

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