Since 6 April 2003, those with parental responsibility for children up to the age of six (age 18 for disabled children) have had the right to request to work flexibly, and to have their request considered seriously by their employer. This right was extended to carers of adults on 6 April 2007. From 6 April 2009, the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009 will extend the right yet further, to those with parental responsibility for children aged up to 17.
This briefing considers what the ‘right to request’ involves for employers and employees, why the extension has been introduced, the potential impact of this change in the current financial environment and some practical guidance for employers.
Who can make a request?
To be eligible to make a request, employees must have 26 weeks’ continuous employment and not have made a request in the previous 12 months. The request must be made to allow:
- a parent (or parent ’s spouse, partner or civil partner) to care for a child of the prescribed age; or
- the employee to care for an adult who is his or her spouse, partner or civil partner, a relative or someone who lives at the same address as the employee.
The only change made by the new regulations is the amendment of the cut-off for the prescribed age of the child from six to 17.
What rights does the legislation give?
The legislation does not give parents or carers a right to work flexibly. Instead, it provides the following:
- a right to request flexible working;
- a statutory request procedure;
- an obligation on the employer to consider a request seriously; and
- specified grounds on which an employer can refuse a request.
Eligible employees can request a change to working hours, working times or working location. This includes a wide range of working patterns, such as job-sharing, home working and term-time working.
An employer can only reject a flexible working request if the employee does not meet the eligibility criteria or on one or more of eight specified business grounds, where refusal would bring or lead to:
- additional costs;
- an effect on the ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit new staff;
- a detrimental impact on quality;
- a detrimental impact on performance;
- insufficiency of work during periods of work proposed by employee; or
- planned structural changes.
The right to request procedure is lengthy and prescriptive as described in the flowchart above.
The written application must:
- be in writing and dated;
- state that it is an application for flexible working;
- explain the change being asked for and the date on which new arrangements would start;
- identify the effects any change would have on the employer and how that might be dealt with;
- explain the relationship to the child or adult to be cared for; and
- say if any applications for flexible working have been made previously.
What are the consequences for breaching the flexible working legislation?
The maximum compensation that can be awarded against an employee for a failure to follow the statutory procedure is eight weeks’ capped pay – a total of £2,800 as at February 2009.
The more substantial risk for an employer is the risk of an indirect sex discrimination for any refusal, compensation for which is uncapped.
Why has the right to request been extended to parents of children aged up to 17?
Flexible working is one of the many ‘family-friendly’ policies introduced by the current government, which always made clear that the scope of the right might be extended. In April 2007, the right was extended to the carers of adults.
In November 2007, Imelda Walsh, HR Director of J Sainsbury, was appointed to lead an independent review into the implementation of this change. The Walsh review was published on 15 May 2008, with the following principal recommendations, which the government accepted in full:
- the new age cut-off should be 16 and under;
- the increase should be made in a single step;
- businesses would benefit from increased information and guidance about dealing with flexible working requests; and
- more should be done to raise awareness of the right to request flexible working, both among employees and employers.
What does the change mean for employees and employers?
The government predicts that the changes will make an extra 4.5m employees eligible for this right and that approximately 270,000 additional new working arrangements will be accepted each year.
The government has recognised that extending the right to request to parents of children aged from six up to 17 will result in annual additional costs to employers of £69m in terms of procedure and in making adjustments to working arrangements. However, it estimates that the benefits to firms from savings in recruitment costs, lower staff turnover and absenteeism, and increased productivity and profits will outweigh the costs and result in a net benefit.
The impact may not be as great as these figures suggest; many employers already operate successful and widely available flexible working policies.
What will be the impact of flexible working in the current economic climate?
While the announcement of the planned extension to the flexible working legislation was welcomed by employees and their representative bodies, employers questioned if it was appropriate to introduce these changes in the current economic climate. The Confederation of British Industry’s (CBI’s) Deputy Director-General, John Cridland, said ‘We think that the decision to implement this policy in April rather than later in the year is a mistake. It will place an extra administrative burden on companies at a difficult time, when they are already struggling to cope with the economic downturn.’
However, as supporters of the extension have been quick to point out, if a flexible working request would harm a business, the employer can always say no.
A rise in requests for flexible working has been predicted – online jobsite ‘Working Mums’ says that 79 per cent of mothers are planning to go back to work or increase their hours because of the credit crunch. However, employees already on flexible working hours may ask to return to standard hours as they need to earn more money to weather the recession. An employee has no statutory right to request a return to ‘normal’ hours and there is no statutory procedure to follow, although it would be good practice to consider any such request and to give reasons for refusals.
Some businesses have welcomed flexible working as a way of reducing staff costs – offering employees a four-day week generates more positive headlines.
Employers may also see a rise in employee claims connected to flexible working when employees who are either on flexible working arrangements or have made a flexible working request are made redundant.
Summary guidance for employers
- Review and amend existing flexible working policies. Inform employees of any changes made.
- Ensure the correct procedures are followed for all statutory requests made. Managers and decision makers should be trained about the factors that will be relevant when considering a flexible working request, bearing in mind the limited grounds for refusal, the potential for a discrimination claim and an employment tribunal’s power to investigate underlying reasons for a refusal.
- Remember that employers will still be able to reject requests if there are legitimate business reasons for doing so.
- The Department for Business, Enterprise and Regulatory Reform (BERR) has launched a campaign to increase awareness of flexible working rights and to help businesses understand how to handle requests. Employers should make use of the improved tools and of the guidance available.
- Employers may be more reluctant to accommodate a flexible working request from an employee with a teenage child than, for example, an employee with a young baby, considering the employee’s needs to be less acute. However, this type of reasoning should be avoided. Guidance issued by BERR indicates that employers should take decisions based on objective business grounds rather than on employees’ personal circumstances.
- Flexible working arrangements could be considered as an alternative to redundancies.
- Employers carrying out redundancies should avoid selection criteria that target employees on flexible arrangements because they risk unfair dismissal claims on the basis of indirect sex discrimination or discrimination against part-time or flexible workers.