These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.

The Flexible Working Regulations

The main provision of these regulations is the employee’s right to make an application to work flexible time to aid in caring for a child. A request can be made for flexitime, working from home, job share, term-time working, shift working, staggered hours, self-rostering, annualised hours, compressed hours and tele-working.

However, it is not simply a case of the employee asking their employer to work as and when they please; there is a procedure to be followed and the right only applies to certain types of employee. A parent, adopter, guardian or foster parent of the child may apply if they are living with the child and responsible or expected to be responsible for raising the child. The child must be under sixteen years of age or, if disabled, under eighteen years of age. The employee must have 26 weeks continuous service on the date that the application is made.

Next, the employee must make an application. This must be submitted in writing and must set out the employee’s desired working pattern and how they think the employer would be able to accommodate the request. After the employee has given your employer the application, the employer’s only legal obligation is to consider it and follow a specific procedure to ensure that it is considered seriously. This means that the employee is in no way guaranteed to have their changes implemented.

The employer must meet with the employee to discuss their application within 28 days unless it is agreed to within that time. The employee is entitled to be accompanied at the meeting by a fellow worker. The decision of the meeting must be given to the employee in writing within 14 days of the meeting and, if the employee disagrees with the decision, they must appeal in writing within 14 days of being given the decision. The employer may refuse any request for a change in working hours if there are business reasons for this, for example, it is too costly, customer demand will not be met, or it will not be possible to organise work among other staff. The inability to recruit new staff and lack of work during times when the employee proposes to work are also considered to be valid business reasons for refusing a change.

The appeal hearing must be held within 14 days of the notice of appeal being given by the employee and a decision on the appeal must be given within 14 days after the meeting is held. Assuming this internal appeal fails then a complaint can only be made to the Employment Tribunal if the employer has failed to follow the correct procedure or if the decision to reject the application is based on incorrect facts. These are very limited grounds for legal claims.

Although the Flexible Working Regulations do not generally permit the right to complain to the Employment Tribunal, the refusal of a request for flexible working to women might be an act of indirect sex discrimination under the 1975 Sex Discrimination Act. There are a number of test cases where women have successfully made claims to the Employment Tribunal after the refusal of an employer to allow them to return on a part time basis after maternity leave. The refusal of such a request generally has to be objectively justified and this objective justification can be challenged at the Employment Tribunal under the Sex Discrimination Act.

March 2009

This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case.  Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 0800 135 7917 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.

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<p><strong><a href="http://www.lemon-co.co.uk/article_flexible-working.php">Flexible Working</a></strong><br /> The Flexible Working Regulations came into force on 6th April 2003. But will they really make a difference for parents of young families in this country?...</p>

 

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