New flexible working right becomes closer

As of next year, employees with children will be able to legally claim
flexible working rights to spend more time with their kids

Is your business ready for employees’ right to request flexible working in
April 2003? The DTI has published draft regulations for consultation.

As expected, your staff will need six months’ service before they can make
an application. Along with natural parents, the rule also applies to adopters,
guardians, foster parents, and anyone married to such a person, or who lives
with them as a family. This means the new right could even apply to someone in
a same-sex relationship.

To be eligible, the employee simply has to show they are caring for a child
aged under six or, if disabled, under 18. There is currently no provision for
employers to verify that the employee actually meets these eligibility
requirements.

Starting the process

The employee will start the process by making a written application to the
company. This must explain what kind of flexible working they want, what the
effect might be on the company and how this could be dealt with.

If the employer objects, they must hold a meeting with the employee to
discuss the matter within 28 days, but this date can be extended if the person
who normally deals with the applications is temporarily absent. The company
must then communicate its decision in writing within 14 days.

To refuse a request, an employer must have a defined business reason. These
are varied and include cost, performance and problems of reorganisation. If the
flexible working arrangement does not suit the business, it should not be
difficult to find allowable grounds for refusal.

The employee has 14 days to appeal. Unless the company caves in, it must
hold another meeting to assess the second application within 14 days. It then has
a further 14 days to inform the employee of its decision in writing. Once
again, this must be accompanied with a justification of the reasons.

Disappointed employees must wait 12 months before applying again. These time
limits can be extended by agreement if the company confirms the changes in
writing. The employee will have the right to be accompanied in the meetings.

Employers liability

The key will be to follow the procedure. Most of the grounds for complaint
to a tribunal will be that the correct procedure has not been followed. The
employee can also complain if the company has based its decision on incorrect
facts.

A company does not need to balance its needs against those of the employee,
as there is no requirement for reasonableness. In fact, it will be far easier
for companies to resist changes than under indirect sex discrimination law.
But, if companies do reject applications, they could then face indirect sex
discrimination claims, so they need to be careful. The maximum penalty for
non-compliance is still the subject of DTI consultation.

Companies should now be drafting internal procedures which establish who
staff should send their applications to and how the company will deal with
them. They should also consider changing contractual terms to protect
themselves against the risks of flexible working. Home working can have
implications for health and safety, insurance, data protection and
confidentiality of information, for example.

The company may also want to trial the flexible working arrangement or
terminate it after the child reaches its sixth birthday. If you do not include
such rights, the new working arrangement will be indefinite. As a result, firms
should consider policies that cover different flexible working arrangements.

Key points

– Be prepared for the new right by drafting appropriate procedures

– Consider the changes which you will need for employment contracts for
flexible workers

– React proactively to get the best working arrangement for the business

By Jill Kelly, an associate with Clarks Employment Team, Reading

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