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
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