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?

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

Eligible employees will be able to request:

• a change to the hours they work
• a change to the times when they are required to work
• to work from home

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 18 th birthday, if that is sooner).

Parents of disabled children are entitled to 18 weeks’ parental leave (previously 13 weeks) up to the child’s 18 th 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.