FAQs: Statutory right to flexible working

A major change to the Employment Bill 2001 proposes the
introduction of a statutory right for an employee to request a contract
variation to enable flexible working. 
Sara Sawicki, associate and employment specialist at Pinsent Curtis
Biddle answers some key questions.

When would an
employee be able to request a contract variation?

Where
the change will enable him/her to care for a child (the relationship between
the employee and child is to be defined by Regulations). 

The
request must be made 14 days before the child’s sixth birthday or (if the child
is older) its 18th birthday.

Which terms and conditions of employment can the employee request to
vary?

The
hours that he/she is required to work; the times when he /she is required to
work; or the place where he is required to work (ie, home or the employer’s
place of business); or such other terms as defined by Regulation.

Can the employer refuse a request to vary the contract?

The employer will
only be able to refuse a request if the reason for refusal relates to one of
the eight reasons specified below:

1.                     
the burden of additional costs;

2.                     
detrimental effect on ability to meet customer need;

3.                     
inability to re-organise work amongst existing staff;

4.                     
inability to recruit additional staff;

5.                     
detrimental impact on quality;

6.                     
detrimental impact on performance;

7.                     
insufficiency of work during the periods that the employee
proposes to work;

8.                     
planned structural changes;

or other grounds specified by
Regulations.

Doesn’t this give
the employer a wide range of reasons for refusing a request?

It
would appear so.  However, what is not
clear is the level of proof required from an employer to demonstrate a
legitimate reason for the refusal. 

For
example, if the employer refuses the request on the basis that he is unable to
recruit additional staff, he will presumably be required to demonstrate that he
has attempted to recruit additional staff in the first place.  

Are there any procedural requirements that have to be followed when an
employee requests a variation to his contract?

There
are various procedural requirements set out in the Bill, although these will be
finalised in regulations. The employee must make the application in writing,
and must explain the effect which the employee believes the change would have
on the employer and how this effect might be dealt with. 

The
employer must follow a specified timetable when dealing with the request and
any appeal.  The procedure includes a
meeting to discuss the request, the provision of reasons for the record, the
right to appeal and a right to be accompanied by a representative.

What happens if the employee is dissatisfied with the employer’s
decision?

The
employee must be given the right to appeal against refusal of the request. Once
a request has been made, the employee can only make a further request to the
same employer after 12 months have elapsed. 

The
employee can also make an application to the tribunal.  There will be two grounds for
complaint.  The first will be that the
employer’s refusal is based on incorrect facts.  The second ground will be that the employer has failed to follow
the correct procedure.  

What are the remedies?

If
the employment tribunal finds in favour of the employee, it can make a
declaration to that effect. The tribunal may order the employer to reconsider
its decision (in which case the statutory procedure begins again).  It can also make an award of compensation to
the employee (as yet undefined).

The
employee also has the right not to be dismissed or subjected to a detriment for
a reason connected to his/her application for flexible working. 

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