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Flexible working

28 April 2005
Flexible working

Requests from male and female employees who want to change their working arrangements to suit their childcare needs require more serious consideration following the enaction of the Employment Act 2002, which came into force in April 2003.

What is the right? From April 2003, all employees have the right to request flexible working hours to care for their child or children. The change in working conditions can relate to any of the following terms and conditions of employment:
* Hours and times required to work
* Where he or she is required to work
* Any other aspect of the terms and conditions of employment that will be "fleshed out" in Regulations to published in due course.

What must the application contain? The employee must provide the following information when applying for flexible working:
* State that it is an application for flexible working
* Explain the relationship with the child
* Spell out clearly what changes to terms and conditions the employee requires, and when the changes should be effective
* Explain the effect that any such change may have on the employer and how, in the employee's view, any such effect could be overcome.

When must the application be made? Any application for flexible working must be made before the 14th day before the day on which the child reaches six years of age or, in the case of a disabled child, reaches 18 years.

How many applications can an employee make? An employee can only make one application to the same employer for flexible working arrangements in any 12-month period.

What must the employer do on receiving a request? The employer must act promptly once a request for flexible working is received, and take the following steps:
* Hold a meeting with the employee within 28 days of the request being made
* Provide the employee with a written decision within 14 days of the meeting

* Hold an appeal meeting with the employee within 14 days after the date on which the notice of appeal is given by the employee
* Make a decision in writing within 14 days of the appeal setting out the reasons for not granting the request.

Can an employer refuse a request? Employers should consider all requests carefully and can only refuse if one of the following reasons applies:
* Additional costs to the business
* Detrimental effect on the business' ability to meet customer demand
* Inability to reorganise work among existing staff
* Inability to recruit additional staff
* Detrimental effect on quality or performance
* Insufficiency of work during the periods the employee proposes to work
* Planned structural changes.

What remedies are open to employees? Employees who have their requests turned down can apply to the Employment Tribunal in the following circumstances:
* Where the employer has failed to comply with his duties to consider the request, and
* Where the employer rejects the application based on incorrect facts.
A Tribunal can order a reconsideration by the employer of the request, and make an award for compensation which (subject to a maximum amount to be determined by the Secretary of State) the Tribunal considers to be just and equitable.

What can employers do to avoid Tribunal claims? It is vital to give any request for flexible working serious consideration, and only refuse them if the refusal falls within one of the grounds permitted under the legislation.

Implementation of the right to request flexible working hours A recent study suggests that some of the perceived benefits of implementing flexible working practices include increased employee motivation and positive effects on retention and recruitment of staff. The most prevalent flexible working practice is part-time working, with nine out of 10 survey respondents offering this option to their employees. In addition, four out of 10 organisations enhance the statutory right to request flexible working - for example, by making it available to carers or to all employees.

What the future holds The Government is examining the possibility of extending the right to ask for flexible working to parents with older children, or those with other responsibilities, as recommended by the Equal Opportunities Commission.
However, the British Chamber of Commerce Employment Survey 2004, which received responses from more than 1,200 businesses, suggests that such a move would not be welcomed by employers - 62% of respondents opposed any increase in legislation.
In addition, the deputy director general of the CBI suggested that such an extension "should be treated with caution. Large increases in the volume of requests may reduce employers' ability to accommodate them."

Jonathan Exten Wright is a partner and Deepali Kidambi a trainee in the Employment department of DLA Piper's City office. E-mail: jonathan.exten-wright@dlapiper.com.

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