Outlook video: Extending the right to request flexible working

XpertHR's head of content Jo Stubbs and group editor David Shepherd discuss the Government's proposals to extend the right to request flexible working. 

 

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The questions in full:

What does the coalition Government propose with regard to the right to request flexible working in relation to parents?

At present, the right covers carers of adults and the parents of children under the age of 17 (or under 18 where the child is disabled). By April 2011, the Government plans to put in place secondary legislation extending the right to parents of all children under the age of 18. 

In its "Programme for government", produced back in May 2010, the Government said it wanted to extend the right to request flexible working to all employees – has it said anything further on this?

Yes, the Government has said it intends to publish proposals on the extension of the right to request flexible working to all employees in January 2011, with the consultation to be completed in March 2011. It then plans to analyse the consultation responses and develop detailed plans on extending the right to request flexible working to all employees in the period to December 2011. 

Does it give a date for legislation extending the right to all employees?

No. However, the timetabling makes April 2012 the most likely date for the extension to all employees. 

This is just a right to request flexible working, not a right to work flexibly, isn’t it?

Yes, but employers are obviously obliged to follow a particular process on receipt of a flexible working request from an eligible employee, or risk a tribunal claim. This involves holding a meeting to discuss the request within a certain time frame, notifying the employee of the decision within a defined period and offering a right of appeal where the decision is to refuse the request. In addition, the employer can refuse a request only where the refusal is on one of the business grounds set out in the legislation – although these are fairly wide ranging. 

Even where an employer follows the statutory procedure could it still face a tribunal claim?

Yes, the main risk for employers that refuse a request for flexible working is a discrimination claim. This is likely to be an indirect sex discrimination claim from a female employee on the grounds that women are more likely than men to have primary responsibility for childcare (or elder care), so fewer women can comply with a requirement to work full time. Employers also have to be careful not to refuse a request for flexible working from a man where they would have agreed to a request from a woman. This could result in a direct sex discrimination claim. And while the maximum penalty for an employer’s failure to follow the statutory procedure is eight weeks’ pay, capped at the statutory maximum, there is no limit to the compensation that can be awarded in a discrimination claim. 

What plans does the Government have with regard to "shared parental leave"?

We spoke to the Department for Business, Innovation and Skills (BIS) about this and were told that its plans to consult on "shared parental leave" refer to making maternity and paternity leave more flexible. While, under a scheme inherited from the previous Government, parents of children expected to be born from April 2011 onwards will be able to share maternity leave, with the father taking "additional paternity leave" if the mother returns to work before using her full maternity leave entitlement, BIS explained that the Government is looking at allowing both parents to be on leave at the same time. 

 

XpertHR Liveflo

XpertHR Liveflo guides employers step by step through procedures to comply with the law. For each flowchart it provides an interactive flowchart setting out the steps in the process. It offers guidance on each step, along with calculators and templates. The available flowcharts include:

If you subscribe to XpertHR Professional or XpertHR Small Business, Liveflo is part of your subscription. Simply log in using your normal XpertHR username and password. 

 

BIS business plan

BIS business plan sets out the Government's next steps for extending flexible working The business plan published by BIS sets out the Government's timetable for moving forward its proposals to extend the right to request flexible working to all employees.