Flexible Working Regulations

Parliament has now approved the two sets of Regulations which contain the detail of the new right to request flexible working¹. The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002, SI 3236, and the Flexible Working (Procedural Requirements) Regulations 2002, SI 3207, are both coming into force on 6 April 2003. For a detailed description of how the new right will work, see The Employment Act 2002 (1) .

Our discussion in The Employment Act 2002 (1) was based on the provisions of the Employment Act 2002 and two drafts of the above Regulations. These drafts were put out for consultation on 10 July 2002. While the government made clear that the vast majority of their provisions were settled, it also invited views on a small number of specific issues. The outcome of this consultation, and the consequent amendments and additions to the draft regulations, are detailed below.

Amendments to the draft regulations

To be eligible to apply for flexible working, an employee must be either:

(i) the mother, father, adopter, guardian or foster parent of the child; or

(ii) married to, or the partner of, the child's mother, father, adopter, guardian or foster parent².

In the draft regulations, the equivalent provision specified that, where an employee qualified as married to the child's mother, father, adopter, guardian or foster carer, he or she had to additionally live with the child (The Employment Act 2002 (1) ). This additional requirement has now gone.

The definition of "partner" has been slightly modified from that which appeared in the draft regulations (The Employment Act 2002 (1) ). "Partner" is now defined as a person (whether of a different sex or the same sex) who lives with the child and the mother, father, adopter, guardian or foster parent in an enduring family relationship but is not a relative of the mother, father, adopter, guardian or foster parent of a kind specified in paragraph (2)³. Paragraph (2) provides that such a relative is the mother's, father's, adopter's, guardian's, or foster parent's parent, grandparent, sister, brother, aunt or uncle⁴.

The draft regulations specified that certain key documents - the initial application, the employer's notice of its decision, any appeal by the employee, the employer's notice of decision on the appeal and the employer's record of any agreement to extend any time period - would have to be personally signed. In order to enable the application process to be conducted by email, this requirement of personal signature has been omitted from the final Regulations⁵.

The date on which an application is to be treated as made is the date on which it is received by the employer⁶. The provisions specifying how applications by post, facsimile and electronic communication should be treated have been amended and are now far more concise and straightforward. In relation to an application transmitted by electronic communication, the day on which an application is received is taken as the day on which it is transmitted⁷. In relation to an application sent by post, the day on which it is received is the day on which it would be delivered in the ordinary course of post⁸.

Where the individual who would ordinarily consider a flexible working application is absent from work on annual leave or sick leave, there is provision for the initial time limit of 28 days (within which the employer must hold the first meeting) to be extended. The draft regulations provided for an extension of 28 days from whenever the individual returns to work (The Employment Act 2002 (1) ). This has now been amended to provide that the 28-day time limit (for holding the initial meeting) commences either on the day the individual returns to work or 28 days after the application is made, whichever is the sooner⁹. This imposes a maximum extension of 28 days on the initial 28-day time limit.

The draft regulations specified that one of the circumstances in which an application would be treated as withdrawn was where the employee had failed more than once to attend either the initial meeting or the appeal meeting. Following concerns that this provision could cause unfairness to the employee, it is now specified that it is only where such failure is without reasonable cause that the application will be treated as withdrawn¹⁰.

Points put out for consultation

In the consultation document which accompanied the draft regulations, the government specifically invited views on whether it should produce statutory forms for the application to request flexible working, the employer's response, any appeal by the employee and the employer's response to the appeal¹¹. Following the consultation, this proposal has been abandoned and instead the government is producing a series of best-practice forms which can be used as templates.

In a separate consultation document, the government invited views on the appropriate maximum level of compensation a tribunal should be able to award where an employer has failed to follow the statutory procedure for dealing with flexible working applications, or has based its decision to refuse an application on incorrect facts¹². The government's Summary of responses reveals that all employee representatives argued for a maximum of 52 weeks' pay, and most employer representatives argued for four to 13 weeks' pay, with some public sector employers arguing for more than this¹³. The government decided on a maximum of eight weeks' pay and this is now contained in the final Regulations¹⁴.

In the draft regulations, the government proposed two alternative options for who should be allowed to accompany the employee to the initial meeting and any appeal meeting (IRS Employment Review 758 p.59). The first option mirrored s.10 of the Employment Relations Act 1999, so that a trade union official not employed by the employer would be able to accompany the employee. The second option was to confine the possible companion to another member of staff from the workplace. Neither option has been followed. Instead, the Regulations provide that the companion must be a worker employed by the same employer as the employee¹⁵.

There has also been a slight amendment where a meeting is postponed because a companion is unavailable. The re-arranged meeting must be within seven days of the date initially proposed by the employer¹⁶ - the draft regulations had specified five days.

As proposed in the draft regulations, the companion will have the right to address the meeting, and be allowed to confer with the employee during the meeting, but he or she will not be allowed to answer questions on the employee's behalf¹⁷ (IRS Employment Review 758 p.59).

Detriment and dismissal

The government has included in the final version of the procedural Regulations a new provision concerning detriment and dismissal¹⁸. However, the protection given is concerned solely with the right to be accompanied. By this provision, a person has the right not to be subjected to any detriment by his or her employer on the ground that he or she exercised, or sought to exercise, his or her right to be accompanied, or that he or she accompanied, or sought to accompany, an employee, to the initial meeting and any appeal meeting¹⁹.

Likewise, a dismissal on such grounds will be regarded as unfair and no qualifying period or upper age limit will apply²⁰. Interim relief in relation to such dismissals will also be available²¹.

The government intends also to introduce regulations which will extend the Acas binding arbitration scheme to disputes concerning flexible working applications (IRS Employment Review 758 pp.59-60). To date, the government has not produced any draft version of these regulations.

1. The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002, SI 3236, made 31 December 2002, and the Flexible Working (Procedural Requirements) Regulations 2002, SI 3207, made 20 December 2002.
2. Reg. 3(1) of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002.
3. ibid, reg. 2(1).
4. ibid, reg. 2(2).
5. Reg. 4 of the Flexible Working (Eligibility, Complaints and Remedies) Regulations; regs. 5, 6, 9, and 12 of the Flexible Working (Procedural) Requirements 2002.
6. Reg. 5(1) of the Flexible Working (Eligibility, Complaints and Remedies) Regulations.
7. ibid, reg. 5(2)(a).
8. ibid, reg. 5(2)(b).
9. Reg. 13 of the Flexible Working (Procedural) Requirements 2002.
10. ibid, reg. 17(1)(b).
11. See paras. 25-27 of Work and parents: competitiveness and choice. Consultation on draft regulations: flexible working provisions, July 2002.
12. See Work and parents: competitiveness and choice. Consultation on flexible working: compensation, April 2002.
13. See pp.3-4 of Work and parents: competitiveness and choice. Consultation on draft regulations to implement the right to requestflexible working and the duty on employers to consider requests seriously. Summary of responses, November 2002.
14. Reg. 7 of the Flexible Working (Eligibility, Complaints and Remedies) Regulations.
15. Reg. 14(3) of the Flexible Working (Procedural) Requirements 2002.
16. ibid, reg. 14(5)(b).
17. ibid, reg. 14(2).
18. ibid, reg. 16.
19. ibid, reg. 16(1).
20. ibid, reg. 16(3).
21. ibid, reg. 16(5).