Returning to work and flexible working

The right to request flexible working from an employer has existed since 2003 – it is not a guaranteed right to a flexible arrangement, but simply the right to ask an employer to put one in place. There is also the right to request such an arrangement for another of the child’s carers (since 2006).

Eligibility

There are a number of eligibility criteria that need to be met for someone who wants to request flexible working. These are:

– Being employed with the employer for 26 weeks or more.

– Being responsible for a child under 17 (or 18 where the child is disabled).

– Being the child’s mother, father, adopter, guardian or foster parent or partner, civil partner or spouse of that person.

– Being a carer (a spouse, relative, civil partner or person living at the same address caring) for a child who is 18 or older.

Suggestions for flexible working

A request for flexible working can include a number of suggestions of changes that could be made to an employment schedule, including part time working, reduced working hours, a job share, working from home or another location, and starting or finishing work at a different time to the standard start and finish times.

When a request for flexible working is made

A request for flexible working can be made at any time from the day the child is born to the day before the 17th birthday (or 18th where the child is disabled). It can only be made once in 12 months and should be given in writing and clearly set out the changes proposed to an employee’s working situation and the effect this will have on the employer, as well as including a reference to whether such a request has been made before (and when). Even where there is a distinct possibility that the request will be refused, it should still be formally made – the response that is given may be important in demonstrating an employer’s response, which may be required for a discrimination claim (see below).

The request procedure

Most employee handbooks should cover this kind of procedure – it is important for both parties to follow the procedure laid out in the handbook and, where there is no procedure or no handbook, for an employer to consider introducing one. The timing of the procedure is usually that a meeting should take place within 28 days of the request being made; after the meeting an employer should respond to the request within 14 days; there is then the right to appeal within 14 days; if the proposal is accepted the employer must write to the employee within 14 days of the meeting confirming the arrangements and the start date.

Employees are entitled to bring someone with them to the meeting and are to be given reasons for any refusal of the request. Once the new working arrangements have been agreed, this change is permanent and previous terms of employment can only be returned to with the parties’ consent.

Challenging a refusal

A refusal to allow flexible working arrangements can be challenged by an employee in an Employment Tribunal. There are two very specific situations in which this can be done – 1) where the decision is based on the wrong facts or 2) if the right process has not been followed. Where an employee wants to challenge such a refusal this must be done within three months less one day of either the refusal or the appeal.

An Employment Tribunal in this situation can make an employer reconsider the refusal and can award financial compensation of up to eight weeks pay, up to a maximum of £3,200 (£400 a week).

There may also be a challenge on the basis of indirect sex discrimination. The person making the complaint will need to be affected by the provision, criterion or practice, which must apply to all employees, must not be objectively justifiable (i.e. a proportionate means of achieving a legitimate aim), and must put women as a group at a disadvantage as compared to men. Tribunals will usually accept that it is the women in society who tend to bear most of the childcare responsibilities, which makes policies that discriminate against women wanting a flexible working arrangement to carry out childcare responsibilities more likely to be discriminatory. It also means it would be harder for a man to claim this.

The potential compensation for a successful sex discrimination claim is unlimited and can cover loss of earnings suffered as a consequence of an employee’s refusal to grant a request of this nature. There is the same time limit to make a claim for sex discrimination – three months less one day from the date of discrimination, or the last day of the discriminatory behaviour if it was ongoing. This could be the refusal of the request, the appeal date, or the date of any dismissal or resignation. Time limits can be extended by a Tribunal but this is not guaranteed.