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Flexible working
An employee with caring responsibilities for a child under the age of 17 (18 if disabled) or an adult has the statutory right to request a flexible working pattern.
Anyone can ask to work flexibly, but the statutory right is restricted to:
• Employees;
• With 26 weeks service;
• Caring for an adult who is married to or the partner or civil partner, relative or living at the same address as the employee; or
• Is, or is the partner of, the mother, father, adopter, guardian or foster parent of a child and has (or expects to have) parental responsibility for the child.
There is a formal statutory procedure. The employee must make:
• A written, dated request setting out the desired working pattern and explaining how the employer could meet the request. There is a statutory form, but the request should not be disregarded just because the employee has not used the form.
• Only one formal request for flexible working is allowed every 12 months.
• The employer must consider the application seriously and reject it only if there is one or more of a list of statutory “business reasons” for doing so.
• Once the request has been made, the employer must arrange a meeting to discuss it with the employee, who has the right to bring a workplace companion or rep, who is entitled to paid time off to attend (regulation 14 — Flexible Working (Procedural Requirements) Regulations 2002).
• The employer must write to the employee within 14 days, either agreeing the new pattern or providing clear business reasons for rejecting it.
• There is a right to appeal.
Any change to the working pattern will be permanent, unless the parties agree otherwise, so care must be taken, especially if agreeing to change or reduce working hours, if the employee wants the change to be temporary.
It is a right to request flexible working, not a right to work flexibly.
A failure to follow the procedure can lead to a tribunal claim, or alternatively to voluntary arbitration.
The government plans to abolish the statutory procedure and replace it with a Code of Practice and an obligation on the employer to act “reasonably”.
Compensation of up to eight weeks’ pay can be awarded for unreasonably rejecting a request for flexible working, with up to an additional two weeks’ pay if there was no meeting, or if the employee was not allowed to bring a companion. Pay is capped at a maximum — currently £450 a week.
Relevant law: Sections 80F-80I, ERA 96
The right to request flexible working was considered by the EAT in the following case:
Warehouse assistant Mrs Rutty made an informal request to reduce her hours to look after her grandchild. When this was turned down she made a formal request to move to a three-day week under the ERA 96. Her employer refused, saying that it would have a detrimental impact on performance in the warehouse.
The EAT said that the tribunal was allowed to examine the employer’s reason for refusing the request, to test whether it was factually correct, but not to second-guess its fairness or reasonableness. In particular, the tribunal was allowed to look at the effect of granting the request — including examining whether the employer could have coped with the revised hours without disruption, what other staff felt about the request for flexible working and whether they could have made up the time.
The EAT concluded that the employer’s assertion that a three-day week would have a detrimental effect on performance was not supported by the evidence, and that the employer had not carried out any investigations to see whether her request could be complied with. Rutty’s claim was successful.
Commotion Ltd v Rutty [2006] IRLR 171
Both employee and companion have the right not to be victimised or dismissed for a reason concerned with a request for flexible working (sections 47E and 104C, ERA 96).
A refusal to allow a worker to reduce their hours could also amount to indirect sex discrimination (see Chapter 6). The Court of Appeal has held that a refusal to allow an employee to work on a job-share basis was sex discrimination and could not be justified when the employer had failed to show that the job could not be done on that basis (Hardys & Hansons plc v Lax [2005] IRLR 726).
In Shaw v CCL Ltd (UKEAT/0512/06), the EAT held that a refusal to allow part-time work was both direct and indirect discrimination and amounted to a breach of contract, entitling the employee to resign and claim constructive dismissal.
In Mitchell v David Evans Agricultural Ltd (EAT/0083/06), the EAT said that when deciding whether an employer was justified in refusing an employee’s request to work part-time, the tribunal should have undertaken a proper analysis of the needs of the business, and considered whether the proposal for a full-time worker was “reasonably necessary”.