EMPLOYMENT
LEGISLATION
FLEXIBLE
WORKING – THE RIGHT TO REQUEST
A basic summary (PL516 Rev 1)
The
Government is
committed to helping working parents. From
6 April 2003, parents of
children aged under six or disabled children aged under 18 have the
right to apply to work flexibly and their employers will have a duty to consider
these requests seriously.
At the same time, the
Government is increasing and extending maternity leave and pay and
introducing rights to paid adoption and paternity leave.
These rights, together with existing rights to parental leave and
time off for dependants, provide parents with more opportunities than ever
before to balance work and family life, whilst being compatible with, and
beneficial to, business efficiency.
This
document provides basic information on the right to request a flexible working
pattern. It does not attempt to describe
the detail, and should not be taken as an authoritative statement of the law.
The
Government’s consultation  (93Kb)
on the detail of the right closed on 10 October 2002.
More
detailed guidance on the right is available in Flexible
working - the right to request and the duty to consider: guidance for employers
and employees (PL520) (1.5Mb).
From
6 April 2003 parents of children aged under six or of disabled children aged
under 18 will have the right to apply to work flexibly providing they have the
qualifying length of service. Employers will have a statutory duty to consider
their applications seriously.
The
right enables mothers and fathers to request to work flexibly.
It does not
provide an automatic
right to work flexibly as there will always be circumstances when the employer
is unable to accommodate the employee’s desired work pattern.
The right is designed to meet the needs of both parents and employers,
especially small employers. and aims to facilitate discussion and encourage both
the employee and the employer to consider flexible working patterns and to find
a solution that suits them both. The
employee has a responsibility to think carefully about their desired working
pattern when making an application, and the employer is required to follow a
specific procedure to ensure requests are considered seriously.
| Who can apply? |
What kind of
changes can be applied for? |
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In order to make a request under the new right
an individual will:
-
be
an employee
-
have
a child under six, or under 18 in the case of a disabled child
-
be
either
- the child’s mother, father, adopter, guardian or foster parent, or
- married to or the partner of the child’s mother, father, adopter,
guardian or foster parent
-
have
worked with their employer continuously for at least 26 weeks at the
date the application is made
-
make
the application no later than two weeks before the child’s sixth
birthday or 18th birthday in the case of a disabled child
-
have
or expect to have responsibility for the child’s upbringing
-
be
making the application to enable them to care for the child
-
not
be an agency worker
-
not
be a member of the armed forces
-
not
have made another application to work flexibly under the right during
the past twelve months
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Eligible
employees will be able to request:
This
covers working patterns such as annualised hours, compressed hours,
flexitime, homeworking, job-sharing, self-rostering, shift working,
staggered hours and term-time working (further information on different
types of flexible working and the potential business benefits is available). |
The procedure
In
summary, the procedure is as follows:
-
It
is up to the employee to make a considered application
in writing. They are only able
to make one application a year under the right, and accepted applications will
mean a permanent change to the
employee’s own terms and conditions of employment unless otherwise agreed
between both parties.
It is important therefore that, before making an application, the
employee gives careful consideration to which working pattern will help them
best care for their child; any financial implications it might have on them in
cases where the desired working pattern will involve a drop in salary; and any
effects it will have on their employer’s business and how these might be
accommodated.
-
Within 28 days
of receiving the request, the employer must arrange to meet with the employee. This provides the employer and the employee with the
opportunity to explore the proposed work pattern in depth, and to discuss how
best it might be accommodated. It also provides an opportunity to consider other alternative working patterns
should there be problems in accommodating the work pattern outlined in
the employee’s application. The
employee can, if they want, bring with them a worker employed by the same
employer as a companion.
-
Within 14 days after the date
of the meeting the employer must write to the employee to either agree to a new
work pattern and a start date; or to provide clear business grounds as to
why the application cannot be accepted and the reason why the grounds apply
in the circumstances and set out the appeal procedure. In
the majority of cases this will be the end of the matter.
-
All
time periods can be extended where both the employer and the employee agree.
Any extensions must be recorded in writing by the employer and copied to the
employee.
Can
an employee appeal against the decision?
Yes. The
procedure provides an employee with the right to appeal against their employer’s
decision within 14 days of being notified of it. The appeal process is designed to be in keeping with the overall aim of
the right of encouraging both employer and employee to reach a satisfactory outcome at the
workplace.
In
a minority of cases some employees will have grounds to pursue their request
with third party involvement. This
may be by referring their request to Acas, to an employment tribunal, or by
using another form of dispute resolution. An
employee is only able to take their claim to an employment tribunal in
specific circumstances. In such cases, the employer must be able to demonstrate to
the tribunal that they have followed the procedure correctly.
The
new law providing parents of young or disabled children with the right to
request a flexible working pattern will be in addition to, and will apply
completely independently from, other legislation such as sex, disability, or
race legislation.
Other family
friendly rights
Changes
to maternity rights
Existing maternity rights are being
changed to extend the period of maternity leave and pay and to increase the rate
of maternity pay. Women whose expected week
of childbirth begins on or after 6 April 2003 will benefit from the new
maternity leave and pay rights.
See Maternity
leave –
changes (PL507).
New
right to paid paternity leave
A
right to paternity leave and pay is being introduced. Eligible employees will be able to take up to two weeks’ paid leave to
care for their new baby and support the mother. The right will be
available to employees whose children are expected to be born, or are born, on
or after 6 April 2003. See Paternity – leave and pay
(PL514).
New
rights to paid leave for adoptive parents
A
right to adoption leave and pay is being introduced. The new right will be available to individuals who adopt, or one partner
of a couple where the couple adopt jointly. A right to paternity leave and
pay for the other member of the couple, or an adopter’s partner, is also being
introduced. Employees whose children are
placed with them on or after 6 April 2003 benefit from the new adoption and
paternity leave and pay rights.
See Adoptive parents – rights to leave and
pay (PL515).
Rights
to parental leave and time off for dependants
Employees
– both mothers and fathers – who have completed one year’s service with their
employers are already entitled to 13 weeks’ (unpaid) parental leave to care
for their child. Parental leave can usually be taken up to five years from the date
of birth or in cases of adoption five years from the date of placement (or the
child’s 18th birthday, if that is sooner).
Parents
of disabled children are entitled to 18 weeks’ parental leave (previously 13
weeks) up to the child’s 18th birthday, providing they have the
qualifying length of service. See Parental leave
(PL509) (228Kb).
All
employees are also entitled to take a reasonable amount of (unpaid) time off
work to deal with an emergency or unexpected situation involving a dependant.
See Time
off for dependants
(96Kb).
Further
information
Details
of the new rights will be available once they have received Parliamentary
approval – it is anticipated that this will be around the end of 2002.
Both
employers and employees can use the
DTI website and its interactive guidance
site TIGER
to work out eligibility for the right.
The
guidance booklets mentioned in this document are available from the DTI
Publications Orderline on 0870 1502 500 or can be
ordered online.
Employers
can get more information on SPP from the Inland Revenue.
For additional help, employers may phone the employers’ helpline on 08457 14 31 43.
Further
advice on employment law matters, including the new rights, as well as good practice guidance is available from Acas.
Small
businesses can register at businesslink to receive reminders and
updates about changes to employment law. Information is also available on a wide
range of help for small businesses.
Information on all aspects of employment legislation can usually be
provided by accountants, citizens advice bureaux, employer organisations, legal
advisers, low pay units, trade unions and a number of private sector and
voluntary bodies.
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