Under
new proposals employees will have the right to ask for flexible working and
companies must consider these requests
Legal
developments and demographic forces are both pushing in the same direction;
towards a workforce with a wide variety of working patterns tailored to meet
the individual needs of workers.
Employers
need to ensure that, despite these trends, they can maintain an efficient and
effective workforce and embrace flexible working patterns rather than seeing
them as a disruption to business.
Flexible
working relates to a range of working practices and arrangements and can
include part-time working, job sharing, shift working, home working,
teleworking, flexi-time, term-time working and annualised hours.
Those
employers who already operate flexible working patterns accept that improvement
in staff morale, reduction of staff turnover, retention of skilled staff and
reduction in absenteeism are recognised benefits.
It
seems that the improvements to be made to maternity leave and pay and the
introduction of paternity leave are not as important to parents who need
greater flexibility to balance childcare and work responsibilities on a more
long-term basis. As such, in response to the feedback from a DTI taskforce
report About Time: Flexible Working, a new statutory right to request to work
flexible hours will be implemented.
Requests
for part-time work are now commonplace, but under the new proposals, employees
will have the right to make a request for flexible working and a statutory duty
will be imposed on employers to consider such requests. It is likely that
legislation implementing the recommendations of the taskforce will take effect
in April 2003, at the same time that the changes improving maternity rights and
introducing paternity rights come into force.
To
qualify for the right to make a request, employees (the definition of which
will not extend to agency workers or casual staff unlike the Part Time Workers
Regulations) will need to have been employed for more than six months.
Similarly to the Parental Leave Regulations, the right to make a request for
flexible working will be limited to parents or those adults who have parental
responsibility for a child under the age of six. Parents with disabled children
will have this right until the child’s 18th birthday.
Initially,
employees must submit a written request for flexible working, indicating their
reasons for the request, why flexible working would assist them and when they
would like the working pattern to begin. In addition, employees should outline
whether there are any implications for the employer, particularly if colleagues
would have to change their working patterns to accommodate their request.
The
employer must then look at the business case in considering whether the request
can be accommodated.
If
the request is rejected, the employer should then arrange a meeting within a
further four weeks to discuss the case and any alternative arrangements if the
suggested work pattern cannot be accommodated.
Within
two weeks of this meeting, the employers should write to employees with a
decision. Any appeal should be heard within a further two weeks and if after
the appeal decision the employee is not satisfied that their request has been
seriously considered, it is recommended that the parties use a mediator or Acas
to resolve any differences.
However,
employees do have the right to bring a tribunal claim in which the tribunal’s
role would be to consider whether the correct process has been followed and
whether the facts relied on in the business case for denying the request are
accurate. It is not for the tribunal to question the employer’s reasons for
refusing the request. However, if a claim of indirect sex discrimination is
added to a request claim, then the tribunal would have to consider the
objective business justification for refusing the request.
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Once
a request has been accommodated by an employer, an employee does not have the
right to revert to their original working pattern once the child reaches the
cut-off age, neither can the employer insist that the employee returns to the
original working pattern.
By
Simon Tytherleigh, an associate in The Human Resources Group at Eversheds
