New Flexible Working Regulations - Employment Law News Spring 2003

01 April 2003

From 6 April 2003 employees will have the right to make a formal request for flexible working arrangements to enable them to care for their children. ‘The Flexible Working (Procedural Requirements) Regulations 2002’ and ‘The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002’ have now been published and clarify how this new right will apply.

Potentially relevant to 3.8 million employees, the main provisions are as follows:

• The right is limited insofar as it is a right to request flexible working arrangements, not to demand change
• A mother, father, adopter, guardian or foster parent, or spouse or partner of a person in that position (of the same or different sex), who has responsibility for the upbringing of a child aged under 6 years or, if disabled, under 18 years, will be eligible to make an application for flexible working after 26 weeks of employment
• The employee must submit a written application setting out the change that she would like made to her hours of work, times of work or place of work and the start date of the change requested. The application should also include an explanation of the effect, if any, the change may have on the employer’s business and how the employee considers that effect might be dealt with
• An employer can only refuse an application on the basis of one of the following statutory grounds:

1. Burden of additional costs
2. Detrimental effect on ability to meet customer demand, on quality or on performance
3. Inability to re-organise work among existing staff or to recruit additional staff
4. Insufficiency of work during periods employee proposes to work
5. Planned structural changes

• Within 28 days of the application, a meeting must be held with the employee to discuss the application and within 14 days of the meeting the employer must notify the applicant of the decision made. If the decision is to refuse the application, the employer must state in writing which of the statutory grounds apply and set out details of the appeal procedure. If the employer agrees to the application for flexible working at any stage he must confirm to the employee in writing the agreed permanent contract variation and start date
• An employee is entitled to be accompanied by a fellow employee of her choice to meetings and is entitled to appeal a decision to refuse her application within 14 days
• An employee can present a complaint to an Employment Tribunal on the basis that her employer has refused her application on a non-statutory ground, that the rejection of her application was based on incorrect facts or that there has been a breach of the statutory procedure. The tribunal’s role is limited in that there appears little scope for it to scrutinise an employer’s reasons for refusing the request or the commercial validity of the decision made
• If successful, the tribunal may grant the employee a declaration that there has been a breach, make an order that the employer reconsider the application and/or make an award of ‘just and equitable’ compensation, subject to a maximum of 8 weeks’ pay (a week’s pay here is currently capped at £260), totalling £2,080. In addition, if the complaint is of breach of the right to be accompanied at meetings, the tribunal may order up to a maximum of 2 weeks’ pay as compensation, totalling £520

Less draconian than business initially feared, employers may sense that this is a right which good process and a certain degree of flexibility can accommodate. But as we go on to remind employers below, there are wider legal issues at play, and these must not be overlooked in too narrow a focus on compliance with the new right.

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