Under the Flexible Working Rules 2003,
the Flexible Working Procedural Regulation 2002 and the Flexible
Working Regulations 2002 incorporate the Government’s
policy in relation to flexible working. As from the 6th April
2003, parents and guardians of children under 6 or under 18
if the child is disabled, can make a request to their employer
for flexible working arrangements.
What constitutes flexible working arrangements?
It certainly covers part time working, working
from home or a change in hours. Not all employees can make
a request. The qualifying employee must have at least twenty
six weeks employment before they can make the request. Both
parents can make the request for example if both of the parents
are employed by the same employer, there is nothing to stop
both parents asking for flexible working.
It is highly likely that the right will
be extended to cover carers of sick and disabled relatives
and older children before 2007.
The employer may object to allowing flexible
working in the following circumstances:-
- On the grounds that the burden on the
business is such that it would raise additional costs.
- That it is detrimental to the effect
on the businesses ability to meet
customer demand.
- It is detrimental on the ability to
reorganise work amongst other existing staff.
- That there is difficulty in recruiting
additional staff to cover.
- It would affect the quality or performance
of the business.
- That there would be insufficient work
for the person to do during
the period proposed.
- That the structural changes would have
an adverse affect on the business.
All of these amount to grounds on which the employer could
legitimately refuse the application.
Procedural Requirements
For the employee to apply for flexible working,
he must do so in writing and it must be dated and state whether
any previous application has been made by the employer to
the employee and if so, when. The employee’s application
must also state the nature and date of the change to the terms
and condition which he wishes, the employer must within 28
days after receiving the application, hold a meeting to discuss
the application. The employer has 14 days to notify the employee
in writing of his decision after the meeting. If the decision
is a refusal he must specify the grounds for the refusal and
then the employee has 14 days to appeal the decision. The
appeal must be in writing and must be heard by the employer
within 14 days of receiving it.
It is important to be borne in mind when
dealing with flexible working that women returning from maternity
leave are frequently asked for changes in hours and the Sex
Discrimination Act can cover these circumstances and probably
provides more protection in itself than a flexible working
arrangement. The same will also apply in relation to claims
on part time working under the Part Time Working Discrimination
Rules.
In conclusion
The Regulations give grounds for people
asking for flexible working in relation to child care. They
do not however necessarily mean that the employer has to provide
flexible working and there are many reasons where the employer
can refuse, legitimately provided they have got evidence to
support the grounds for refusal. However, it is a change for
the better for employees in these circumstances and may become
more useful when it is extended to take into account all children
and caring for disabled adults and elderly parents.
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