Right to request flexible working: an EOR guide
The new legal duty on employers to consider applications for flexible working from employees who are parents of young or disabled children comes into force on 6 April 2003. It is estimated that 3.7 million parents will be eligible to apply.
The final version of the two sets of Regulations dealing with eligibility, complaints and remedies1, and with the procedural requirements to exercise the new right2, which we reported on when they were put out for consultation last year (EOR 110), will come into force on that date. The Regulations implement the provisions of the Employment Act 2002 (EOR 109) on flexible working. The Act provides a statutory right to request a "contract variation" in respect of working hours, working time or working from home. The employer has no duty to agree to the request, but it must fit its reason for rejecting the request into one of a number of specified business grounds or face a claim for compensation from the employee of a maximum of eight weeks' pay. The reasons given by the employer may, in an appropriate case, serve as the basis for a claim of sex discrimination by the employee.
The Department of Trade and Industry (DTI) has issued a very detailed guide on the new provisions3, to which we will refer in this article. Indeed, the detail generated by the DTI as to how requests should be made by employees and handled by employers might be thought rather disproportionate for a legal right with very limited scope.
The DTI guide also reveals a disconcerting confusion between what is the law and what is good practice. For example, the introduction to the guide summarises the right to request flexible working as follows: "The right provides eligible employees . . . with the right to request a flexible working pattern and places a duty on employers to consider their requests seriously. The initial onus is on the employee to prepare a carefully thought-out application well in advance of when they would like the desired working pattern to take effect. The employer then follows a set procedure to help ensure a request is considered seriously, which seeks to facilitate discussion and enables both parties to gain a clear understanding of each other's thinking. An employer may only refuse a request where there is a recognised business ground for doing so."
Virtually every statement in that quotation is legally problematic. The legislation does not require the employee's application to be "carefully thought-out"; it does not have to be prepared "well in advance"; there is no duty on an employer, as such, to consider a request "seriously"; and the employer does not have to have a "recognised business ground", in an objective sense, for rejecting a request - it is sufficient if the employer "considers" that the business ground applies.
What is meant by "flexible working"?
The Act provides that "a qualifying employee" may apply to their employer for a change in their terms and conditions of employment if the purpose in applying for the change is to care for a child and the change relates to:
"(i) the hours he is required to work;
(ii) the times when he is required to work;
(iii) where, as between his home and a place of business of his employer, he is required to work; or
(iv) such other aspect of his terms and conditions of employment as the secretary of state may specify by regulations."
According to the Explanatory Notes to the Act, the intention is that this will cover "work patterns such as compressed hours; flexitime; homework; jobsharing; teleworking; term-time working; shiftworking; staggered hours; annualised hours; self-rostering."
Who is eligible to apply to work flexibly?
In accordance with the Act and the Eligibility Regulations, eligibility depends on meeting the following criteria:
being an employee;
having a child aged under six years, or under 18 years where disabled;
being responsible for the child;
making the application to enable them to care for the child;
having worked with their employer continuously for 26 weeks at the date the application is made;
not having made another application to work flexibly in respect of the right during the past 12 months;
not being an agency worker; and
not being a member of the armed forces.
The Regulations set out the relationship the employee must have with the child in question in order to be eligible to apply. They provide that the right will only apply to an employee who "has or expects to have responsibility for the upbringing of the child" and is either:
"(i) the mother, father, adopter, guardian or foster parent of the child; or
(ii) married to or the partner of the child's mother, father, adopter, guardian or foster parent."
The Regulations define a "partner" as "a person (whether of a different sex or the same sex) who lives with the child and the mother, father, adopter, guardian or foster parent in an enduring family relationship", but who is not the parent, grandparent, sister, brother, aunt or uncle of the mother, father, adopter, guardian or foster parent. What is notable about this definition is that it extends to same-sex partners.
What form must the application take?
The Regulations provide that a request for flexible working must be made in writing, state whether a previous application has been made to the employer and if so, when, and be dated.
Following consultations, the government decided that applications do not have to be made on a statutory application form in order to be valid. The DTI has, however, issued model application forms (see box).
The Act stipulates that the request must make clear that it is an application for flexible working, and that it must "specify the change applied for and the date on which it is proposed the change should become effective". It must also explain the relationship between the employee and the child.
Furthermore, the application must "explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with". This is a crucial requirement, and a request which did not satisfy it would be invalid. However, there is nothing in the Regulations themselves to elaborate upon what will be expected from an employee in this regard. The DTI guide says that the requirement "does not mean that the employee is expected to know every factor that might influence the employer's decision. It simply means that they should show that they have considered the factors that they are aware of that are likely influence their employer's decision."
Date of making the application
The Regulations take the date when an application is made to be the date on which it is received by the employer, unless the contrary is proved. This date is important because, as explained below, an employer has a duty to follow a specified procedure in considering applications to work flexibly, and each step is time-dependent.
Where an application is transmitted by electronic communication, it is deemed to be received on the day on which it is transmitted. Where an application is sent by post, it is deemed to be received on the day on which it would be delivered in the ordinary course of post.
What are the duties on an employer in considering an application?
The Flexible Working (Procedural Requirements) Regulations set out the procedure that an employer will have to follow to consider a request.
Meeting
If the employer immediately agrees to the employee's request for a contract variation, it must inform the employee in writing within 28 days from the date of the application. The employer's notice must specify both the contract variation agreed to and the date the variation will take effect from.
In all other cases, the employer must hold a meeting with the employee to discuss the application within 28 days after the application is made, unless this period is extended by an agreement recorded in writing by the employer. An employee has the right to be accompanied by a fellow employee at this meeting (see below).
The DTI guide contains a list of recommendations for employers on ensuring that they "get the most from the meeting". The DTI suggests that an employer might want to: "make a list or draft an agenda of the issues you want to discuss at the meeting, eg if you are already aware that the request can be granted, you may want to discuss a suitable start date before formally accepting the request; inform your employee of anyone you have asked to join the meeting; ask your other workers if they would want to cover any extra hours that may be created as a result of granting the request; if you have a personnel section, speak to them so that you are clear about your options; familiarise yourself with this guidance and the different types of flexible working; if it would be helpful to involve external expertise, be open to the proposition."
Employees are recommended to: "be prepared to expand on any points within your application; prepare to be flexible. Your employer may ask if there are any other working patterns you would be willing to consider or if you would consider another start date or a trial period; if you are taking a companion along, make sure they are fully briefed on your request beforehand, provide them with a copy of your application, and inform your employer that a companion will be present. This will save time during the meeting; familiarise yourself with this guidance and other sources of information on flexible working before the meeting."
Agreeing to flexible working
Where a meeting is held to discuss an application, the employer must give the employee written notice of the decision on the application within 14 days after the date of the meeting.
If the employer has agreed to the variation, the notice must specify the contract variation agreed to and the date on which it is to take effect.
Two points are very important to note in this context. First of all, what the employer and employee are agreeing to is a variation to the contract of employment. Unless and until there is a provision to the contrary or a further agreement, what is agreed will represent a permanent change to the employee's terms and conditions of employment. If it is agreed that the employee will work part time, for example, this will remain, on the face of it, an employee's contractual entitlement even when the employee is no longer eligible under the statute to request flexible working because their child is over the age of six. Any attempt by the employer to alter the employee's status unilaterally would be a breach of contract. Similarly, the employee will be bound by the change in status unless otherwise agreed. The employee will have no right to return to full-time working at a later date.
Conversely, there is nothing in the statute or Regulations to preclude an employer from agreeing to allow an employee to work flexibly, but subject to conditions agreed in advance. Thus, an employer might want to stipulate that it is agreeing to flexible working only for a limited and pre-determined trial period. Or, it might want to insert a clause in the agreement that the right to flexible working will last only until the employee's child is of a certain age, such as age six.
Refusing flexible working
If the employer's decision is to refuse the application, the notice sent to the employee must state which of the grounds for refusal specified in the Employment Rights Act 1999 (ERA), as amended, are considered by the employer to apply, "contain a sufficient explanation as to why those grounds apply in relation to the application", and set out the appeal procedure.
The Act specifies that an employer to whom a valid application is made can only refuse the application because it considers that one or more of the following grounds applies:
"(i) the burden of additional costs;
(ii) detrimental effect on ability to meet customer demand;
(iii) inability to reorganise work among existing staff;
(iv) inability to recruit additional staff;
(v) detrimental impact on quality;
(vi) detrimental impact on performance;
(vii) insufficiency of work during the periods the employee proposes to work;
(viii) planned structural changes; and
(ix) such other grounds as the secretary of state may specify by regulations."
No further grounds have been specified in the Regulations.
The DTI guide recommends that: "The explanation should include the key facts about why the business ground applies. These should be accurate and clearly relevant to the business ground. To prevent any uncertainty, the explanation should avoid the use of unfamiliar jargon and should be written in plain English.
"An explanation of around two paragraphs will usually be sufficient, although the actual length of explanation necessary to demonstrate why the business ground applies will differ depending on each individual case. It is not a requirement for the employer to have to provide a lengthy and complex explanation looking to cover each argument in fine detail, nor should the employee expect this. The aim is for the employer to explain to the employee, in terms that are relevant, why the requested working pattern cannot be accepted as a result of the business ground applying in the circumstances. If the argument does not look convincing to the employer, it is unlikely to look convincing to the applicant. This is a vital stage in the constructive dialogue that maintains a good relationship between both parties."
It is especially important for employers to ensure the accuracy of any facts put forward in their explanation. As noted below, the role of an employment tribunal hearing complaints about failure to comply with the right to request flexible working is heavily circumscribed, but one of the grounds on which a complaint can be upheld is that a decision by the employer to reject the application was based on "incorrect facts".
Appeals
An employee is entitled to appeal against the employer's decision to refuse an application. The notice of appeal must be given within 14 days after notification of the employer's decision. It must be in writing and "set out the grounds of appeal". The DTI guide points out that: "There are no constraints on the grounds under which an employee can appeal. It may be that they wish to bring to attention something the employer may not have been aware of when they rejected the application, eg that another member of staff is now willing to cover the hours the applicant no longer wishes to work. Or it may be to challenge a fact the employer has quoted to explain why the business reason applies."
The employer must arrange an appeal meeting within 14 days of receiving notice of the appeal and inform the employee of the outcome within 14 days after the date of the meeting.
Extension of time limits
All the time limits provided for under the Procedural Requirements Regulations can be extended by agreement between the employer and employee.
Right to be accompanied
The Procedural Requirements Regulations give an employee a right to be accompanied at a meeting (or an appeal) by a "single companion". This companion will be permitted to address the meeting and to confer with the employee during the meeting, but will not be allowed to answer questions on behalf of the employee. This is a similar function to that under s.10 of the ERA. The DTI guide explains: "The role of the companion is to support the employee. For example, if the employee has not attended many meetings before, it is possible that they may be nervous. The presence of a colleague can therefore make the meeting more productive for the employer and the employee."
Following consultation, the government decided to restrict the "companion" to "a worker employed by the same employer as the employee". This allows an employee to bring along a union representative, such as a shop steward, who works at any establishment of the employer. However, the government rejected the option of defining "companion" in the same way as for the existing right to be accompanied at disciplinary and grievance hearings under the ERA, so as to allow an employee to be accompanied by either a fellow worker or a trade union official from outside the organisation. Nevertheless, the DTI guide points out that: "The companion may . . . have some expertise about different types of flexible working. Experience shows that the involvement of such an individual can be helpful to both parties. It can be valuable to allow the companion to be from outside the organisation where their involvement would help reach an outcome acceptable to both parties, although there is no obligation for the employer to do this."
The Regulations provide that an employer must allow a worker to take time off during working hours in order to act as a companion. They also replicate the provisions of s.11 of the ERA allowing an employee to complain to an employment tribunal where the employer has failed to comply with the right to be accompanied. In such a case, a tribunal is able to award compensation of up to two weeks' pay.
What are the remedies for breach of the Regulations by the employer?
The Act allows an employee to complain to an employment tribunal that the employer has failed to follow the procedure correctly for considering an application; failed to provide a sound business ground, as specified in the Act, when rejecting an application; or based their decision to reject an application on "incorrect facts".
The Eligibility, Complaints and Remedies Regulations add that an employee can make a complaint to an employment tribunal where there is a failure to hold a meeting or to discuss an appeal in accordance with the Procedure Regulations, or a failure to notify a decision in accordance with the Regulations.
Thus, the tribunal's role is essentially to ensure that the employer has followed the statutory procedure. So far as the two substantive grounds are concerned, the basis for challenging the employer is extremely limited. Providing "a sound business ground" is essentially a labelling exercise. Only an employer unfamiliar with the statutory provisions would fail to give a reason falling within the prescribed grounds.
The quality of the employer's decision can only be scrutinised in so far as it is based on facts that the employee can show to be "incorrect". However, the DTI guide acknowledges that "an employee has no right to make a complaint where they simply disagree with the business grounds provided by the employer for declining a request, and neither has the employment tribunal . . . powers to question the employer's business reasons." It suggests that a tribunal "will want to see evidence of any facts relied upon to reject the application and that the employer has provided the employee with sufficient explanation as to why the business ground applies to the application."
It follows that there is no mechanism for challenging the reasonableness of an employer's decision to refuse a request for flexible working, even where the decision would be regarded as outside the range of reasonable responses, let alone where it is not objectively justifiable.
Remedies
Where the tribunal finds a complaint well-founded, it can send the case back to the employer for reconsideration of the application and/or award such compensation as it considers "just and equitable" in the circumstances, subject to a maximum of eight weeks' pay. A "week's pay" is itself limited to the maximum provided for under s.227 of the ERA. This is reviewed annually and is currently £260, so that the maximum award is currently £2,080.
Sex discrimination
Notwithstanding these limited remedies for breach of the right to request flexible working, employers will need to be aware that how they deal with a request may serve as a precursor for a claim of sex discrimination.
An employer who turns down a request for flexible working from a man in circumstances where a request from a woman would have been treated more favourably could face a claim of direct sex discrimination against men.
More commonly, an employer who turns down a request for flexible working from a woman could face a claim of indirect sex discrimination, since we can anticipate that considerably more requests for flexible working will come from women than from men. In such a case, the business ground put forward by the employer, and its explanation for it, will be subjected to a much greater level of scrutiny under the Sex Discrimination Act 1975 (SDA) than under the flexible working provisions. It will be for the employer to prove that the reasons it gave for turning down the request for flexible working were objectively justified.
Compensation for sex discrimination is unlimited and tribunals are empowered to make an action order requiring the employer to obviate the adverse effect of the discrimination on the employee - eg by granting the request for flexible working - or pay additional compensation.
Note, in this context, that the limit on the right to request flexible working to parents with children under age six does not relieve the employer of its duty not to indirectly discriminate against women with children over age six who request flexible working. An employer that uses the new provisions as an arbitrary cut-off point for who will be allowed to work flexibly might find it difficult to show that this was justifiable under the SDA.
One aspect of the right to request flexible working that has yet to be clarified is how the detailed procedure laid down will interrelate with the statutory grievance procedures which will have to be followed in order to bring a complaint of sex discrimination once the dispute resolution provisions of the Employment Act come into force next year. Thus, if an employee wishes to bring a claim of sex discrimination in respect of refusal to allow flexible working, will the flexible working procedures serve as the statutory grievance procedure, or will the employee have to go through a further procedure in order to be able to make a tribunal complaint? Conversely, will an employee be able to bypass the flexible working procedures altogether and simply bring a grievance under the employer's statutory grievance procedure before issuing a sex discrimination complaint?
Age discrimination
An employee whose request is turned down because they fall outside the coverage of the new statutory right may have a claim under age discrimination legislation when this comes into force in December 2006. This will make it unlawful to discriminate directly or indirectly on grounds of age. Older employees have disproportionate responsibilities for elder care, so that an employer who allowed flexible working for the purposes of childcare, but not elder care, might face an indirect discrimination complaint.
1 Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002.
2 Flexible Working (Procedural Requirements) Regulations 2002.
3 Flexible working: The right to request and the duty to consider, PL 520.
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Employees' rights To apply to work flexibly.
To have their application considered properly in accordance with the set procedure and refused only where there is a clear business ground for doing so.
To have a companion when meeting the employer to discuss the application.
Where an application is refused, to have a written explanation of why.
To appeal against the employer's decision to refuse an application.
To take a complaint to a tribunal in certain circumstances.
Employees' responsibilities and best practice To provide a carefully thought-out application.
To ensure that their application is valid by checking that all the eligibilitycriteria are met and that they have provided all the necessary information.
To ensure the application is made well in advance of when they want it to take effect.
To arrive at meetings on time and to be prepared to discuss their application in an open and constructive manner.
If necessary, be prepared to be flexible themselves, to reach an agreement with the employer.
Employers' rights To reject an application when the desired working pattern cannot be accommodated within the needs of the business.
To seek the employee's agreement to extend timescales where appropriate.
To consider an application withdrawn in certain circumstances.
Employers' responsibilities and best practice To consider requests properly, in accordance with the set procedure.
To ensure that they adhere to the time limits contained within the procedure.
To provide the employee with appropriate support and information during the course of the application.
To only decline a request where there is a recognised business ground and to explain to the employee in writing why it applies.
To ensure that any variation with the procedure is agreed in advance with the employee and recorded in writing.
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Source: DTI, Flexible working: the right to request and the duty to consider.
