The right to request flexible working

A relative is defined as a mother, father, adopter, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent, and includes adoptive relationships and relationships that would exist but for the adoption. Step-relatives and half-blood relatives are also included.

Carers of adults are not required to show a particular level of care to be eligible to ask for flexible work. The nature and extent of care given will vary from individual to individual. The type of care that an employee who requests flexible working is likely to be involved in could include:

Only one application under the procedure can be made to the same employer within a 12-month period. An employee may withdraw an application, but will not be able to make another application for 12 months. Employers should, however, bear in mind that an employee does not have to use the flexible working procedure to request flexible working. If an individual does not use the procedure, or is not eligible to make an application under the procedure – because, for example, of insufficient service – the individual could bring a discrimination claim if the request is refused (see below).

The application for flexible work

Employees can request changes to:

An application in relation to caring for a child must be made before the day on which the child reaches the age of six or, if the child is disabled, 18. An employee making an application to care for an adult can make the application at any time provided that he or she meets all the conditions.

Employees should be encouraged to make the application well before they wish the new work pattern to come into effect, to enable the procedure to be completed and the employer to make any necessary arrangements or recruit new members of staff, such as a job-share partner.

Many women will want to apply while they are on maternity leave, so employers should consider giving them information on the right to request flexible working well in advance. If the employee does not have enough time to complete the procedure before her maternity leave ends, the employer and employee can agree informally to a limited period of flexible working. Alternatively, the employee could seek to delay her return by taking holiday or unpaid parental leave, provided that she gives sufficient notice.

The application must comply with the statutory requirements. It must be in writing and dated, and must state:

There is no legal requirement for the employee to use a particular form, so an employee can apply by letter, fax or email. Model forms can be found in the policies and documents section of XpertHR, and on the Department of Trade and Industry website.

Where an application is incomplete, the employer should inform the employee and ask him or her to resubmit the application when it has been completed. The employer is not obliged to consider the application until it has been completed and resubmitted. The employer has the right to request any further information that it needs to assess the application, for example whether or not there is any flexibility, or whether or not the employee could provide cover on other days/times if requested. The employer is not required to ask for further information in writing. If, without good reason, the employee refuses or fails to supply the information, the employer can treat the application as withdrawn and should write to the employee confirming the withdrawal of the application.

The application is taken as having been made on the date it is "received" by the employer. This is the date that sets the timetable for the rest of the procedure. If the application is sent electronically, the date it is "received" is the day on which it is sent. If it is sent by post, the date it is "received" is the day on which it would be delivered in the ordinary course of post. If there is proof that the application was received on a different date, that date is the relevant date. It is a good idea for an employer to acknowledge receipt of an application and state the date on which it was received.

The statutory procedure

The employer can agree to the employee's request without a meeting. If the employer does so, it should write to the employee within 28 days setting out the agreed contract variation and the date from which it is to take effect.

If the employer does not agree to the request at the outset it must hold a meeting to discuss the application within 28 days of when it was made. The time and place of the meeting should be convenient for the employer and employee, bearing in mind that the employee might be on maternity leave. Failure to hold a meeting within 28 days may give rise to a claim to an employment tribunal for breach of the procedure.

The meeting should provide the employer and the employee with the opportunity to explore the request in detail and discuss how it might work. It will also provide the opportunity to consider alternative working patterns, should there be problems in accommodating the desired working patterns outlined in the employee's application. Employers should consider a variety of working patterns, such as flexitime, job-sharing, working from home, teleworking, staggered hours, term-time working, compressed hours, shiftworking, self-rostering and annualised hours.

The employee should present his or her proposal and set out how the preferred working pattern would work in practice, proposing solutions to any concerns that the employer may have about how it will affect the job and how practical issues, such as cover, can be resolved. The employee is entitled to bring a companion to the meeting. The companion must be a worker employed by the same employer, but does not have to work on the same premises. This would include a workplace trade union representative.

The companion can address the meeting or confer with the employee, but is not allowed to answer questions on the employee's behalf. If the companion is unable to attend the meeting on the date arranged, the employee should rearrange the meeting for a date within seven days of the date originally proposed, ensuring that the new time is convenient for all parties, or choose an alternative companion.

The employee should supply any information that the employer requires to make a decision. This might include information on whether or not the employee could occasionally vary his or her hours with notice, or work days other than those proposed. The employee should also give serious consideration to any alternative suggestions made by the employer.

Any change agreed under the procedure will be a permanent change to the employee's terms and conditions of employment, unless a trial or temporary period is agreed. An employee can ask to return to his or her former hours at a later date, but has no right to do so. However, both the employer and employee may prefer a limited arrangement, and they could agree to a trial period or temporary change.

An employee might ask for flexible working for a temporary period if he or she is caring for an adult who is terminally ill, or whose condition and care needs fluctuate. A temporary change could also be achieved by allowing an employee to use his or her annual leave or parental leave on a flexible basis, for example one day a week.

If the employer accepts the request, it must state this in a written and dated notice given within 14 days of the date of the meeting. The notice must specify the changes to the contract that have been agreed, and give a start date for the new working arrangements.

If the employer refuses the application, it must provide a written and dated notice to the employee within 14 days of the date of the meeting. This must set out:

Failure to comply with these requirements may entitle the employee to bring a tribunal claim.

If the employee wishes to appeal, he or she must do so within 14 days of the date on which the notice of the decision was given. A notice of appeal must be in writing and dated, and must set out the grounds of appeal.

There are no restrictions on the grounds on which an employee can appeal. The appeal might be based on new circumstances – for example that another member of staff can now provide cover on the days on which the employee proposes not to be at work – or it might challenge the employer's reason(s) for the refusal.

The employer can allow the appeal without holding an appeal meeting. If it does so, it must notify the employee in writing of this decision within 14 days of the notice of appeal being given. The notification must specify the contract variation agreed to and the date from which it is to take effect.

If the employer does not allow the appeal immediately, it must hold an appeal meeting within 14 days of the employee's notice of appeal being given. Where an appeal meeting is held, it must be at a time and place convenient to the employer and the employee. The employee is entitled to be accompanied at the meeting. Failure to hold a meeting within 14 days may give rise to a claim to an employment tribunal for breach of the procedure. Employers should consider who will hear the appeal, for example a more senior manager.

The employer must provide the employee with a written and dated notice of the outcome of the appeal within 14 days of the appeal meeting. If the appeal is upheld, the employer must specify the contract variation agreed and the date it is to take effect. If the appeal is dismissed, the employer must set out the grounds on which the decision is based and give sufficient explanation as to why those grounds apply. Failure to comply with these requirements may entitle the employee to make a tribunal claim.

The employer and employee can agree to an extension of time limits for:

The employer must record any such agreement in writing and send it to the employee. The agreement must be dated and state the period to which the extension relates and the date on which the extension will end.

An employer is entitled to treat the application as withdrawn where the employee has failed more than once to attend a meeting without good reason or failed to provide information needed by the employer to assess the request. The employer should confirm in writing that the application has been withdrawn, unless it has already been informed by the employee that the application has been withdrawn.

If an employee misses a meeting because his or her child is ill, and informs the employer, this should be treated sympathetically and is likely to constitute a good reason for not attending the meeting.

Grounds for refusing a request for flexible working

An employer can refuse an application for flexible working only on one or more of the following grounds:

Refusal on grounds other than these will entitle the employee to bring a tribunal claim. An employee can bring a claim only after an appeal has been made and the employee has been notified of the refusal.

The employer's reasons for the refusal must be based on correct facts. If they are not, the employee may bring a claim to the tribunal. If an employee is aware of incorrect facts in the employer's decision, he or she should raise these at the appeal hearing. If the employer fails to address them at this stage or includes other incorrect facts in the appeal decision, this will be the basis for a tribunal claim.

Employers should deal with each application on an individual basis and explore the circumstances of the case. They should be careful not to restrict part-time work to certain grades or certain types of work, or to limit the number of part-timers. The more thoroughly an employer considers the job done by the individual and any potential problems, the better able it will be to judge whether or not the change requested might work, and make a decision that can be justified in any discrimination claim. The employer may be able to suggest alternatives that it considers are more practicable, and this may lead to a compromise that suits both employer and employee.

An application under the right to request flexible working can be refused for one of the reasons specified above, which do not need to be objectively justified. However, an employer must also be able to justify objectively a refusal of flexible work in a claim of indirect sex discrimination (see below). Failure to approach the request in an objective and thorough way may result in an employer refusing a request for flexible working for a specified reason under the right to request flexible working legislation, but being liable for a discrimination claim under the Sex Discrimination Act 1975. It is, therefore, advisable for employers to give full reasons for refusing a request, as a tribunal will expect them to justify a refusal objectively if a claim for indirect discrimination is brought.

Tribunal claims relating to the right to request flexible working procedure

An employee can make a complaint to a tribunal for:

Under the right to request flexible working an employee can complain to a tribunal if the employer has:

Although a complaint can be made if the reason given by the employer for refusing the request is not one of the specified business grounds, an employee has no right to make a complaint where he or she simply disagrees with the business grounds provided by the employer for declining the request. An employment tribunal does not have the power to question the employer's business reasons, although it can examine the facts on which a business reason is based to see if they are accurate, for example whether or not the employer is correct to say that another member of staff cannot cover the work at specified times. The employee must raise any inaccuracies at the appeal stage of the procedure before making a tribunal complaint.

Where a complaint is upheld in relation to a breach of the right to request procedure, the tribunal can order the employer to reconsider the application, and/or award compensation that is just and equitable in all the circumstances. Compensation under the right to request flexible working is subject to a maximum of eight weeks' pay, with a week's pay capped at the statutory maximum. Where the employer is found to have prevented the employee from being accompanied at the meeting or appeal hearing, the tribunal may make a separate award of up to two weeks' pay.

The Acas arbitration scheme provides an alternative to going to an employment tribunal. Use of the scheme is entirely voluntary, and the employer and the employee must agree to the dispute going to arbitration. Where both parties agree to use the scheme, the decision of the arbitrator is binding and the employee waives his or her right to bring an employment tribunal claim. The basis for making a complaint to the scheme, the potential remedies and compensation are the same as at an employment tribunal.

The statutory grievance procedure does not apply to any of the tribunal claims for breaches of the right to request procedure. However, it does apply where an employee is claiming detrimental treatment in relation to any aspect of the application to work flexibly. It also applies to claims of direct or indirect sex discrimination and claims of constructive dismissal arising out of the refusal of a request to work flexibly, whether made formally or informally.

Case law on the right to request flexible working procedure

To date, there has been little case law on the right to request flexible working procedure. In Commotion Ltd v Rutty the EAT found that tribunals were entitled to examine and decide on the factual correctness of the asserted ground for refusing a flexible working request, although not its fairness and reasonableness. Ms Rutty worked in a warehouse packing goods and she wished to reduce her working hours from five to three days a week. The employer refused the request on the ground that it would impact detrimentally on performance if all members of staff did not work from 8.30am to 5pm, five days a week. No evidence was put before the tribunal that part-time work was not feasible or that the employer had investigated the proposal. The EAT decided that a tribunal is entitled to look at the reason given by the employer for refusing the flexible work application to see whether or not it is factually correct.

Sex discrimination claims

The Sex Discrimination Act 1975 covers a wider group of claimants than the right to request flexible working Regulations. For example, parents of children of any age are protected from sex discrimination. While the right to request flexible working Regulations apply only to employees, the Sex Discrimination Act 1975 also protects job applicants and ex-employees. Agency workers are specifically excluded from eligibility to request flexible working under the right to request flexible working Regulations. They are, however, covered by the Sex Discrimination Act 1975.

There is no cap on compensation under the Sex Discrimination Act 1975, and it may include an award for injury to feelings.

Indirect sex discrimination

A claim of indirect sex discrimination provides a potential remedy for refusal to allow flexible working. Indirect sex discrimination is concerned with practices that have the effect of discriminating against one sex – for example, practices that disadvantage women, who generally have primary responsibility for children – and cannot be justified by the needs of the job. In addition, there is evidence that more women than men have primary responsibility for the care of other relatives – according to Carers UK, 58% of carers are women and 42% are men. A female carer who is refused flexible work may therefore have a case of indirect sex discrimination, although there are no reported cases to date.

A claim of indirect sex discrimination could be made by:

Under s.1(2)(b) of the Sex Discrimination Act 1975, an employer indirectly discriminates against a female worker if it applies to her a provision, criterion or practice that it applies, or would apply, equally to a man, but which:

A "provision, criterion or practice" could include a range of formal and informal work practices and contractual rules. The fact that more women than men have primary responsibility for childcare means that, in general, it is more difficult for them to work long hours, overtime and irregular hours. A requirement to work full time is therefore likely to put women at a particular disadvantage when compared to men.

A provision, criterion or practice could be:

The key question for the employer to address is whether or not the requested working hours can be accommodated, balancing the needs of the business and those of the parent. Under the right to request flexible working Regulations the reasons for refusing a request for flexible work cannot be challenged in a tribunal, unless the reason for refusal was given "off the cuff" or based on incorrect facts, as in Commotion Ltd v Rutty (see above). However, under the Sex Discrimination Act 1975, the tribunal will scrutinise the employer's reasons for the refusal and decide whether or not the employer was objectively justified in refusing the request. The employer must show that the provision, criterion or practice that prevents flexible working is a proportionate means of achieving a legitimate aim. It will have a defence to a claim of indirect sex discrimination if it can establish justification.

The defence of justification to claims of indirect discrimination

Each indirect sex discrimination case is decided on the facts, although tribunals apply the following legal test when analysing the facts. The legal test has two elements. First, to defend a claim of indirect sex discrimination the employer must show that the provision, criterion or practice:

This is the test set out in the European Court of Justice case of Bilka-Kaufhaus GmbH v Weber von Hartz, which is followed by UK courts and tribunals.

Second, the tribunal must balance the needs of the employer against the needs of the employee. The tribunal must:

Generalised assumptions such as "part-timers are not as committed" and "part-timers are more expensive to employ" will not usually be sufficient to establish justification without evidence to substantiate them. The EAT has decided that employers cannot rely solely on cost considerations to justify indirect discrimination, although they can put cost into the balance with other justifications (Cross and others v British Airways plc).

A blanket policy that takes no account of individual circumstances may be discriminatory. It is difficult for an employer to provide objective justification where no individual consideration has been given to whether or not a job can be done on different hours. In British Airways plc v Starmer, a female pilot who wanted to reduce her hours for childcare reasons was allowed to work 75% of full-time hours but not 50%. The employer said that it would be unsafe for an airline pilot to fly less than 75% of full-time hours, as this would fall below the general minimum flying-hours standard. The EAT decided that the employer had failed to justify a requirement to work at least 75% of full-time hours in relation to the employee's individual skills and competence.

Employers should take account of a job being done on a similar basis. If the same or a similar job is being done, or has previously been done, successfully on similar hours, the worker will be in a strong position, as long as other factors in the workplace remain the same. For example, in Lowe v Peter Bainbridge Optometrist the tribunal found that the job had been shared successfully while the claimant was on maternity leave and could continue to be shared.

An employer's failure to monitor a trial period of flexible working adequately may lead to a finding of indirect discrimination. Employers should take account of how a trial period has gone and must have good evidence to show why it did not work. If the employer can show that the flexible working arrangement requested did not work in the past, and can provide substantial reasons to justify this, it may be sufficient to justify the refusal.

Some employers seek to justify a refusal on the basis that it would open the floodgates to requests for flexible working. However, it is unlikely that all employees would work part time or flexibly given the choice, not least because any reduction in hours reduces an employee's salary proportionately. In any event, even if all employees might want part-time work, refusal of a request for fear of opening the floodgates will not be sufficient justification, unless the employer can show actual problems. An example of where a "floodgates" argument may be justified is if the majority of employees work part time so that it is very difficult to arrange meetings, resulting in a disproportionate burden on full-time workers.

It may be difficult to justify the need for an employee to be in the office all the time. All employees are away at some point during periods of sickness and annual leave, and are often out of the office for other work-related reasons, such as client visits. It will, therefore, be difficult for an employer to show that a requirement to be in the office full time is justified.

Employers should not assume that jobs involving management or supervision of staff cannot be done part time or on a job-share basis. In Webster v Princes Soft Drinks, the employment tribunal found that, although the employer had complied with the right to request flexible working Regulations, its refusal to allow a senior financial accountant to job-share in her post amounted to indirect sex discrimination. The employer's concerns about the risk of different managerial styles interfering with the management of direct reports did not justify refusal. It should have considered delegating routine tasks to other members of staff.

Employers should make an effort to fill the other part of a post before deciding that job-sharing is not practicable. In some cases the employer may be justified in refusing part-time work where a job-share partner cannot be found, for example where the post is highly skilled or specialised and full-time cover is required.

Discrimination claims by men

Men are not usually in a position to claim indirect sex discrimination because, in general, they are less likely to have primary responsibility for childcare or dependant care than women. This means that a man cannot usually show that a requirement to work certain hours puts men at a particular disadvantage when compared with women. However, a man whose request to work flexibly is refused may have a claim of direct discrimination if a woman in similar circumstances has been (or would have been) allowed to work flexibly.

A man can compare his treatment with that of a woman in a similar job, or the treatment of a hypothetical woman if there are no actual women at a similar grade. In Walkingshaw v The John Martin Group a man successfully claimed direct discrimination for refusal of flexible hours. Mr Walkingshaw asked to work part time – two days during the week and on Saturday mornings – to fit in with looking after his son. His request was rejected by the employer on the grounds that it was too complicated. After the meeting at which his request was refused, Mr Walkingshaw resigned. The tribunal found that the employer had granted requests from female employees in a different area of work for reduced hours for family reasons.

Rights of part-time workers

When implementing flexible work patterns employers should have regard to the rights of part-timers. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) give part-time workers rights to the same terms and conditions as full-time workers, on a pro rata basis, unless the employer can objectively justify any less favourable treatment. Pay, annual leave and other monetary benefits should be pro-rated for part-timers.

Employers should consider how to apply benefits such as health insurance or a car that cannot be pro-rated. An employer may be objectively justified in refusing to provide a car for an employee who works only a few hours a week because of the disproportionate cost to the organisation. However, the employer could consider giving a car allowance or pro rata cash payment instead.

Employers should also ensure that part-timers have the same access to promotion and career advancement as full-timers, and that they are not excluded from meetings, training courses and other events. For example, a weekly meeting could be held on different days of the week to ensure that all part-timers can attend at least some meetings.

Summary

The right to request flexible work will be extended to employees who have caring responsibilities for certain adults from April 2007. On receipt of an application for flexible work, employers should follow a set procedure and timetable when considering the request. They are, however, advised to treat all requests for a change in working hours – whether made under the statutory procedure or not – on an individual basis and consider them in a thorough and objective manner. A request under the flexible working procedure can be refused for any of the business reasons specified in the legislation, but a woman with childcare or other caring responsibilities could challenge the refusal as being indirect sex discrimination if the reason for refusing the application cannot be objectively justified. A man could claim direct sex discrimination if his request has been refused but a woman has been, or would have been, allowed to work flexibly.

This feature was written by Katie Wood, a barrister specialising in employment and discrimination law.