Data file: Flexible working

Linda Farrell, head of employment rights & benefits at Bristows, gives
the basics on this key area of employment law

The Employment Act 2002 introduces a new right for parents to request to
work flexibly that will come into force on 6 April 2003.

The hard facts

– Employees with children under 6 (or 18 if disabled) with 26
weeks’ continuous service will have a right to request a variation to their
contract to enable them to care for the child

– The variation can relate to hours, times or place of work
(restricted to the employee’s home or another of the employer’s workplaces)

– The employee must be the mother, father, adopter, guardian or
foster parent of the child (or the spouse or partner of such a person and
living with the child) and have or expect to have responsibility for bringing
up the child

– Only one application can be made in any 12-month period

– A successful application will mean a permanent change to the
contract

Making an application

An application must be:

– Made in writing no later than two weeks before the child’s
6th birthday (or 18th birthday if disabled)

– Explain how the employee meets the criteria as to
relationship with the child

– State that it is for a contract variation

– Specify the desired change and proposed commencement date

– Explain what effect the employee thinks the change would have
on his employer and how it might be dealt with

Employers’ obligations

– Meet with the employee within 28 days of receiving an
application

– Inform the employee of their decision within 14 days of the
meeting

– If an application is refused, give a ‘sufficient explanation’
as to why

– Offer a right of appeal within 14 days and explain the appeal
procedure

– Meet with the employee within 14 days of receipt of the appeal

– Inform the employee of the decision within 14 days of the
appeal meeting

– If the appeal is refused give a ‘sufficient explanation’ as
to why

– Employees will have the right to be accompanied by a fellow
worker

Refusal of application

An employer may only refuse an application on one or more of
the following:

– Burden of additional costs

– Detrimental effect on ability to meet customer demand

– Inability to reorganise work among existing staff

– Detrimental impact on quality or performance

– Insufficiency of work during the periods the employee
proposes to work

– Planned structural changes

Employees’ remedies

Employees will be protected against suffering a detriment or
being dismissed for exercising the right to request a contract variation, but
there will only be two grounds on which to challenge an unsuccessful
application:

– If the employer gets the facts wrong

– If the employer fails to comply with the specified procedure

Employment tribunals will have power to require the employer to
reconsider the application and/or award compensation of up to 2 weeks pay (for
failure to allow the employee to be accompanied at a meeting) or 8 weeks pay in
all other cases (in either case capped at the statutory minimum which is
currently £250 per week).

These new provisions are independent of existing discrimination
laws.

Sources

www.cipd.co.uk/infosource

www.eoc.org.uk

www.acas.org.uk

www.dti.gov.uk/er/flexdraftregs.pdf

www.lg-employers.gov.uk

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