Flexible Working

Introduction

Following divorce or separation, many parents find that they need to make adjustments to their working life to meet their children´s needs. Some parents would like to take a more active role as carer, but can´t see how this can be achieved due to work commitments. The same applies to grandparents and other kinship carers, foster parents, guardians, and adoptive parents and partners of any of these who find themselves responsible for a child's upbringing.

Under the Employment Rights Act 2002, parents and carers have the right to formally ask their employer to vary their contract of employment to allow a different pattern of working to assist them in meeting their children's needs.

The Act granted this right to employees with children under the age of 6, and those with disabled children (where the children are under the age of 18). The Act placed a duty on the employer to consider such applications seriously. Many parents/carers aren't aware that this is an option for them or believe that their employer wouldn't consider such a request. IN APRIL 2009, the right to apply for flexible working was extended to include parents of all children under the age of 16.

While the employer can refuse to accept your application, they must have reasonable grounds to support their refusal. You may be surprised at how many requests for flexible working are accepted. Research published in 2006 by the Department for Business Enterprise and Regulatory Reform (previously the DTI) found that four out of every five applications were granted either in full or in part. You gain nothing by not asking.

What is ´flexible working´?

Flexible working can be whatever arrangements you and your employer agree. This could include (but isn´t restricted to):

working from home;
job sharing;
flexi-time;
time off in lieu;
teleworking;
term-time working;
compressed hours;
flexitime;
staggered hours;
additional leave entitlement.

Who can apply?

The person applying must:

Be applying in respect of a child under the age of 16 or a disabled child under the age of 18;
Make their application at least 14 days before their child's 6th birthday, unless the child is disabled, in which case the application should be made at least 14 days before the child's 18th birthday;
Be responsible for the care of the children (e.g. be the biological parents, adoptive or foster parents, kinship carer, legal guardians and spouses of these including same sex partners);
Have the children living with them in an enduring family relationship;
Be seeking a variation to their working hours to care for the children;
Have worked for the employer for 26 consecutive weeks immediately prior to making the application;
Not have made an application for flexible working in the previous 12 months.

How do I make the application?

You should:

Make the application in writing and include in the letter that you are making the application under the 'statutory right to apply for flexible working´.
You must include your proposed changes to your working hours/location.
Suggest ways in which any negative effects for your employer of a change in your working hours/location could be addressed.
Confirm your relationship with your children (e.g. father/mother/step parent/grandparent carer.
Include your desired start date for the changes but bear in mind that you should give your employer a reasonable amount of time to consider and implement your proposals (depending on the desired changes 12 weeks would seem fair).
You must say if you have previously made an application for flexible working and if so, when.
You must date and sign your letter.

Tips:

Approach your employer asking for help and explaining your circumstances. Consider your employer's needs as well as your own when you do. From your employer's perspective, there's a risk that they'll view your request as a problem, so try to provide them with solutions at the same time. At the very least show that you appreciate their support.

If you need to pick up your children from school at 2.30pm on a Friday afternoon, and drop them off on a Monday morning meaning you'll arrive at work late, could you make up the hours on the other days when the children are with the other parent?

Could it be to the employer's benefit if you're willing to work 'unsociable hours' to compensate.

Can you do work from home, and does the employer allow this?

Would a job share arrangement be practical, and could you afford a cut in pay?

If you have a good relationship with your line manager, ask for an informal chat before making the application. Bear in mind that depending on the size of your organisation, your line manager and employer may not be aware that you have a right to apply for flexible working. It is worth being aware that many businesses (of all sizes) now contract out their human resources function, meaning they go to a third party for advice on employment related issues.

If you are a member of a union, ask for their advice and support before making your application.

A large organisation may have a formal policy on flexible working and helping staff achieve a work/life balance. A small business may struggle to accommodate a substantial change to your hours, especially if you are a key individual.

Are the changes to my contract permanent?

Yes, unless you and your employer have agreed otherwise e.g. for a set period of time or a trial period.

Tip:

If you want the changes to be limited to a specific time period, you should make this clear in your application.

What must my employer do when they receive my application?

After receiving your application, unless your employer immediately agrees with your requests, and unless you mutually agree otherwise (with regard to the following timescales), your employer is legally obliged to:

Arrange a meeting with you within 28 days of receipt of your application to discuss your request;
Allow you to be accompanied by a co-worker;
Notify you of their decision within 14 days of the meeting with you and their reply must either:

Confirm their agreement to your original application and provide a start date for the new arrangements; or
Confirm their agreement to alternative arrangements discussed and agreed at the meeting; or
Refuse your application setting out clear business reasons as to why they cannot accommodate what you have asked for. If your employer refuses your application, they must also provide you with details as to how you can appeal their decision and they must hear your appeal within 14 days of your having informed them that you wish to appeal. If an appeal meeting is held, you must be notified of the employer´s decision following the appeal and within 14 days of that meeting date.

What are reasonable grounds to refuse?

Your employer may only refuse your application on one or more of the following grounds:

the burden of additional costs;
detrimental effect on ability to meet customer demand;
inability to re-organise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work;
planned structural changes.

Tips:

If your employer is unable to agree to the changes you need, consider whether their reasons can be (and have been) reasonably justified under the above grounds for refusal.

If there are members of the opposite sex who carry out a similar role to you but have a more flexible contract, then you may have grounds to appeal due to sexual discrimination.

If the employer has refused to consider your suggestions as to how your proposals could be made workable without detriment to the business, then you may wish to consider appeal, and if that is unsuccessful, you can take the matter to ACAS for arbitration or to an employment tribunal.

ACAS is a publicly funded organisation whose purpose is to provide conciliation (help employers and employees reach agreement). Their contact details are provided at the bottom of this factsheet.

What if my employer unreasonably refuses?

First, ask to discuss the reason for their refusal. It may be a misunderstanding and a compromise which is acceptable to both parties may still be reached. If you believe that your employer is unreasonably refusing your application, you have a number of choices:

Accept your employer´s decision.
If you are a member of a union, ask your union representative for further advice and assistance.
Contact the Citizen´s Advice Bureau for advice.
Seek legal advice from a firm of solicitors specialising in employment law.
Contact ACAS and ask them to help both parties find a solution (see the links at the bottom of this guide).
Make a complaint to an employment tribunal (see the links at the bottom of this factsheet for further information about the tribunal process and an online application form).

Tips:

Be aware that you can only make one application for flexible working in a 12 month period.

A further consideration when deciding what to do is that if you intend to lodge a complaint with a tribunal, this must normally be done within three months of your grievance. If you seek advice from an organisation, check when they will be able to meet you to discuss your case.

Will flexible working affect my pay and benefits?

Quite possibly. Most people would agree it is reasonable for an employer to recalculate your pay on a pro-rata basis should you reduce the number of hours worked. Such matters will depend on your situation and what your employer is prepared to, or can afford to accommodate.

What compensation is there for an unreasonable refusal?

If an ACAS Arbitrator becomes involved in your dispute, or if matters go to an employment tribunal, and the Arbitrator or judge agree that your employer has acted unreasonably in refusing your application, they can order your employer to reconsider and may also award you compensation. The compensation will be decided based on the circumstances of your case. The maximum compensation is eight weeks pay (with a statutory maximum of £270 per week - set in February 2004).

Will a dispute hurt my career?

You have a legal right to apply for flexible working so long as you meet the qualifying criteria. If you are dismissed or treated unfairly as a result of your application, you should take legal advice and consider making a claim against your employer via an employment tribunal.

Tip:

If you present your application reasonably and show that you understand your employer's position, you can reduce the risk that your employer will react in a negative way.

Most managers have pressurised jobs and your application will place additional demands on them personally. Make a point of thanking both them and any of your colleagues who may be affected by the changes.

If your employer is unable to accommodate the changes, and has good business reasons for being unable to help, there remains the alternative of finding another job which may provide you with the flexibility you need.

I'm a contractor. Am I covered by these rights?

No, the rights in relation to flexible working are solely for the 'employed'. It may still be worth arranging a meeting with the company you are working for to find out whether they would accommodate your wishes.

TCM Comment:

Parental involvement in schooling is incredibly important for children, and both parents should be afforded the opportunity to take and collect the children from school and help with homework after. Government and other academic research is conclusive that children do better academically when both parents are involved and take an interest in their schooling.

Our guide on Parental Responsibility and Education sets out the information that the school should send you about your child´s progress. Posted information though is no substitute for the opportunity to discuss matters with a teacher at the school gate. If your child is having problems with a subject or being bullied (or bullying), it is better to resolve matters at the earliest opportunity and to be able to discuss these things informally.

There are many advantages in being involved in your child´s school week. Pick up or drop off from school helps you to meet your children´s friends, invite them to play at your home or to your children´s parties and allows your children´s friends´ parents to see that you are not an ogre with two heads. It is part of a child´s ´family life´.

Flexible working arrangements can help and help child welfare. They're implimented at the highest levels now! David Cameron and Nick Clegg reached an agreement that Cabinet Meetings would start later in the day, to allow them to take their children to school. If the Prime Minister (rightly) views this as a priority in his and his children´s life, then why shouldn´t you and your employer?