Q Do employees have the automatic right to change to a more flexible working pattern?
A Eligible employees have the legal right to apply to their employer for a more flexible pattern of working hours or for more flexible working arrangements. The employer is duty-bound to follow a set procedure and timetable in relation to any such application, and if they are unable to accommodate the employee’s request for flexible working, they must give specific business reasons for that decision. However, employees do not have the automatic right to change to a more flexible working pattern.
Q Which employees are eligible to request flexible working under the statutory right to do so?
A To be eligible to request flexible working, an employee must be the parent, adoptive parent, foster parent, guardian or special guardian of a child under the age of six (18 in the case of a disabled child), or the spouse, civil partner or live-in partner of such a person, and have, or expect to have, responsibility for the child. From 6 April 2007, the right is extended to employees who care for, or expect to care for, an adult aged 18 or over who is their spouse, civil partner or live-in partner, a relative, or someone living at the same address as the employee. The purpose in making the application must be to enable the employee to care for the child or adult in question. The employee must have 26 weeks’ continuous service with the employer at the date of the application.
Q With regard to the statutory right to request flexible working, how is ‘relative’ defined?
A Under the statutory right to request flexible working, an employee can make a request for flexible working for the purpose of caring for, among others, an adult relative. ‘Relative’ for these purposes is widely defined and means a mother, father, adopter, guardian, special guardian, parent-in-law, step-parent, son, stepson, son-in-law, daughter, stepdaughter, daughter-in-law, brother, stepbrother, brother-in-law, sister, stepsister, sister-in-law, uncle, aunt or grandparent. Adoptive relationships and relationships of full or half blood are included, as are those relationships that would exist but for adoption.
Q Can an employee make as many requests for flexible working as they wish?
A No. Where an employee has already made an application for flexible working under the statutory right to do so, they cannot submit a further request to the same employer until 12 months after the date on which the initial application was made. This is regardless of whether the previous application was made in relation to the same caring responsibility or a different one. For example, an employee who wished to make an application for flexible working to care for an adult would be required to wait a year after making an earlier application in relation to caring for a child.
Q How soon before a child’s sixth birthday must an application for flexible working be made?
A It used to be the case that an application for flexible working to care for a child had to be made at least 14 days before the child’s sixth birthday (or 18th birthday, if disabled). However, as of 6 April 2007, an application must be made by the day before the child’s sixth (or 18th) birthday. An employee making an application to care for an adult can make the application at any time, provided that they meet all the other conditions.
Q Does an employee who is requesting flexible working have to demonstrate that the child or adult in relation to whom the application is being made requires a particular level of care?
A No. Employees who request flexible working under the statutory right to do so are not required to show that the child or adult in question requires a particular level of care, or why they personally must provide the care. For example, an employee asking for a change in hours to care for an elderly relative will not need to show that the relative qualifies for disability living allowance, or is unable to cope alone. Neither would a father asking for reduced hours to care for his child be required to show that the child could not be cared for by its mother or someone else.
Q How should an employer respond to a request for flexible working?
A Within 28 days of receiving an eligible employee’s application for flexible working, the employer must either accept the application and notify the employee accordingly in writing, or arrange a meeting with them to discuss the application. Within 14 days of this meeting, the employer must write to the employee either agreeing to the application and specifying the contract variation agreed and the start date on which it is to take effect, or refusing the application, stating which of the specified grounds for refusal it considers to be applicable and explaining why those grounds apply in relation to the application.
Q Is there any right of appeal where an employer rejects an application for flexible working?
A Yes. If an employee is unhappy with the employer’s decision they have 14 days in which to lodge an appeal. Within 14 days of this notice of appeal being given, the employer must hold a meeting with the employee to discuss the appeal. The employer must then convey its decision to the employee in writing within 14 days of the appeal hearing. If the appeal is upheld, the employer’s letter must specify the contract variation agreed to and the date from which it is to take effect. If the appeal is dismissed, the letter must set out the grounds for the decision and contain sufficient explanation as to why those grounds apply.
Q In what circumstances can an employer reject a request for flexible working?
A An employer’s refusal to accept an eligible employee’s application for flexible working must be based on one or more specific grounds. These are the burden of additional costs a detrimental effect on ability to meet customer demand an inability to reorganise work among existing staff or recruit additional staff a detrimental impact on quality or performance insufficiency of work during the periods the employee proposes to work and planned structural changes.
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