Flexible Friends

From 6th April 2003, parents of children under 6 - or under 18 if the child is disabled - with at least 26 weeks' continuous service will be able to request flexible working arrangements. These may relate to:

the hours the employee is required to work;

the time an employee is required to work;

where the employee is required to work; and

any other aspect of their terms and conditions such as flexitime, homeworking, job sharing and part time working.

Employees must make an application for flexible working in writing specifying that it is an application for flexible working. They must certify that the relationship they have with the child entitles them to make the request, for instance they are the mother, father, adopter, guardian or foster parent of the child or married to or the partner of the child's mother, father adopter, guardian or foster parent and expects to have responsibility for the child's upbringing. The employee is not required to state why he or she requires flexible working.

The application must specify the change requested, the date on which they wish the proposed change to take effect and the date of any previous application. Only one application in each 12-month period is permitted. The employee must also specify what effect, if any, the proposed change will have on the employer and how any such change might be dealt with.

Although the application must be made at least 14 days before the child's sixth birthday it may contain a request to work flexible hours at a later date.

Once a request has been received the employer must comply with a statutory procedure and must hold a meeting with the employee within 28 days of receipt of the request, unless the changes have been agreed. The employee has the right to be accompanied by a work colleague at the meeting.

The employer must notify the employee of its decision in writing within 14 days of the date of the meeting. If the request is granted the employer must specify the changes that have been agreed, the date on which they will take effect and the notice to the employee must be dated.

Unsuccessful applications
The employer can refuse a request for flexible working on specified business grounds as follows:

burden of additional costs;

detrimental effect on ability to meet customer demand;

inability to reorganise work among the existing staff;

inability to recruit additional staff;

detrimental impact on quality;

detrimental impact on performance;

insufficiency of work during the period the employee proposes to work; and

planned structural changes.

The employer must state the grounds for refusing the request and give an explanation as to why the grounds apply. The employer must set out the appeal procedure in the letter which is that the employee must send the employer a notice of appeal within 14 days of receipt of the decision. The notice must be in writing, dated and set out the grounds of appeal.

The employer can grant the appeal by notifying the employee in writing within 14 days of the request - alternatively an appeal meeting must be held within 14 days of the notice of appeal and the employee must be sent the employer's decision within 14 days after the date of the appeal meeting. Again if the request is agreed at this stage the employer must confirm this in writing, specifying the agreed changes, the date on which they are to take effect and the notice must be signed. If the appeal is rejected the notice must contain a proper explanation of the reason.

The employee may apply to the employment tribunal if the request for flexible working is refused. However, a tribunal does not have the power to second guess the employer's business reasons and substitute their judgement for the employers. The tribunal will only consider whether the employer has complied with the procedural requirements,, whether the employer has based its decision on incorrect facts and whether the request has been rejected on a ground that is not a permitted business reason for refusal under the legislation.

Criticism of the process
The regulations have been criticised for lacking teeth in this regard. It appears that as long as an employer adheres to the statutory procedure and gives one of the business reasons set out in the legislation he will have discharged his duty. Commentators have also queried why an employee should invoke the flexible working provisions when remedies are already likely to be available under the Sex Discrimination Act 1975 (SDA).

Sex discrimination
Under the sex discrimination legislation both men and women with childcare responsibilities could bring claims where requests for flexible working were denied. Under the SDA a woman would have to show that in the statutory terminology a 'provision, criterion or practice' had been imposed on her with which, due to her gender, she was less able to comply with than a man.

Over the years case law has developed so that if a woman is responsible for childcare it is accepted by the tribunal that she is less able to comply with a requirement to work full time than a man. In order to defend a claim of indirect sex discrimination the employer would have to show justification for the provision and be able to demonstrate that it is balanced against the disproportionate effect on female members of staff. Employees could bring claims of direct discrimination if they were being treated differently from members of the opposite sex in the same work place. Thus employers who refuse a male employee's request for part time work where similar requests have been acceded to for women, will be liable for direct sex discrimination.

Limited powers
The rights under the flexible working provisions are more limited than under the Sex Discrimination Act.

The new right is limited to requests in respect of children under six years old (or 18 if disabled). There is no age limit in respect of a claim under the SDA.

Under the new provisions an employee must have 26 weeks' continuous service. No such condition applies under the SDA.

Requests under the new provisions are limited to one a year.

The type of flexible working requested under the new provisions must be prescribed in the legislation.

There are strict procedural requirements under the new provisions which do not apply under the SDA, and the statutory procedure will take a substantial number of weeks to conclude.

There is no requirement under the flexible working provisions for the business needs of the employer to be balanced against the needs of the employee.

Compensation for sex discrimination is unlimited and the tribunal may order the employer to comply with the request for part time work. In contrast under the statutory provisions the tribunal can award up to a maximum of 8 weeks' pay (£260 per week or £2,080 in total) and there is no ability to order the employer to comply with the request.

As far as employers are concerned it will not be safe to ignore or refuse requests for flexible working because eligibility under the regulations (26 weeks' service) is not satisfied or because the request is not made in the prescribed form. Organisations need to be very aware that a remedy under the Sex Discrimination Act is likely to be available and need to give serious consideration to every case even if the request appears to fall outside the statutory provisions. Organisations will also need to balance their business reasons for refusing requests against the likely impact upon the individual employee.

To ensure consistency in responding to requests for flexible working, organisations will need to consider adopting policies to ensure that requests for flexible working are recognised for what they are, that the statutory procedure is complied with, and that managers are aware of the wider duties and risks under the sex discrimination legislation.

Jane Klauber is a Russell-Cooke Partner specialising in employment law on behalf of the Charity Team.
T: 020 8394 6483
E: Klauberj@russell-cooke.co.uk

This article first appeared in the June 2003 edition of Charity Finance Magazine.