Legal Q&A: Flexible working
The government has decided to extend and revamp the right of employees to request flexible working. When this becomes effective it will mean that employers will have to redefine their flexible working policies. Hannah Ford, associate, Stevens & Bolton, looks at the likely ramifications.
Q What changes are proposed?
A Currently, qualifying parents (which includes adoptive parents, foster parents and guardians) can request flexible working in order to care for children aged under six or a disabled child aged under 18. Following the Walsh Review by the Department for Business, Enterprise and Regulatory Reform, the government announced that it proposed to extend this right to parents with children aged 16 and under. A consultation is ongoing and will end on 18 November 2008.
Q When is this right likely to come into force?
A April 2009.
Q What is the existing procedure and how will it change?
A In brief, the existing procedure is:
- Once the employer receives a request to work flexibly it must arrange a meeting to take place within 28 days.
- Within 14 days of the meeting the employer must respond in writing with a decision.
- If the decision is to reject the request the employee has a right of appeal.
- The employee must appeal within 14 days of the date of the decision.
- The employee has the right to be accompanied at meetings by a work colleague.
- The employer can refuse the application on a number of specified grounds:
- Burden of additional costs
- Detrimental effect on ability to meet customer demands
- Inability to reorganise work among existing staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes.
The existing procedure is not expected to change significantly. However, the government is considering removing the obligation for employers to send a formal letter when they approve an employee’s request, so as to make the process less convoluted.
Q How will employees know their rights and will the employer have to inform them?
A Employers are not obliged to inform qualifying employees of their right to request to work flexibly. Perhaps consequently, lack of ‘employee awareness’ was identified as a key area of concern in the Walsh Review, which noted that flexible working was often viewed as a ‘woman’s issue’ and that there was an imbalance between mother versus father employee awareness. The government has announced that it proposes to address this issue by launching a campaign to raise awareness of flexible working rights.
Q Will the extension confer any real benefit on employees?
A Theoretically, it will give millions more parents the right to request working patterns that will improve their work-life balance. The extension may be particularly useful for parents who taxi children around after school to sports and other activities, and/or parents whose children go to school some distance from their homes.
Q What are the ramifications for employers?
A Many employers have a flexible working policy in place that reflects or goes beyond the existing statutory rights. Such policies are likely to require updating before April 2009.
Concerns that the proposed extension will lead to an increase in sex discrimination complaints are unfounded. Parents with children over six already have to rely on the indirect sex discrimination legislation. Further, the critical points are usually when the parent returns to work after maternity leave, or when the child starts primary school, and such claims would already be covered by the existing regime.
Q Will the legislation be extended further?
A It seems likely, as people’s life expectancy continues to rise and the money available in old age shrinks, people of working age are finding themselves bearing increasing responsibility in terms of time and money for the care of older family members. From April 2007, the right to request to work flexibly was extended to the care of an adult who is a spouse, partner, civil partner or relative, or any adult living at a qualifying employee’s address. If our ‘family focused’ government remains in office, the next step may be a broader extension to cover all employees with responsibility for elderly persons.
