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Flexible Working Time

In April 2003 the Employment Act introduced the rights for parents of young and disabled children to apply to work flexible hours.

What is it and who is involved?

In April 2003 the Employment Act introduced the rights for parents of young and disabled children to apply to work flexible hours. From April 2007 this right has been extended to cover carers of adults. The government has announced that this right will be extended to all parents with children up to the age of 18 and this latest proposed change is expected to come into force in April 2009.

Who can apply?

The applicant making a request for flexible working must be an employee with a contract of employment.

Those applying must have worked for their employer for 26 weeks continuously at the date that the application is made.

Currently, the employee must:
• Have a child under 6 years of age or a disabled child under 18.
• Be the carer of an adult.

Employees can apply to work flexibly to look after a “relative”. This definition covers parents, parents in law, adult child, adopted adult child, siblings, uncles, aunts, grandparents or step-relatives.

To qualify the employee must have parental responsibility for the child. This includes legal guardians, adoptive and foster parents and includes same sex partners as long as they have parental responsibility for the child.

The Work and Families Act defines a carer as an employee who is or is expected to be caring for an adult who:
• Is married to, or the partner or civil partner of the employee, or
• Is a relative of the employee; or
• Falls into neither category but lives at the same address as
• the employee.

It is important to note that the statutory right is to apply for consideration for flexible working. There is no statutory right to insist upon being granted flexible working arrangements.

How should you apply?

• The application must be made in writing stating that it is being made under the statutory right to apply for flexible working. The application must be dated and quite detailed and confirm the employee’s relationship to the child or adult and must set out proposals as to what effect the employee thinks this will have upon the employer’s business and how this may be dealt with. A start date must be proposed for the change giving the employer reasonable time to consider the proposal and, if approved, to implement it.

• A trial period may be agreed.

Employer's Response

The employer must:
• Arrange a meeting with the applicant employee within 28 days of receiving the dated application in order to discuss the request. This is not necessary if the employer agrees to the terms of the application at the outset but notification must be made within the same 28 days.

• After the meeting (at which the employee may be accompanied by a work colleague) the employee must be notified of the employer’s decision within 14 days of the meeting.

• If the request is rejected there is a right of appeal which must be made within 14 days of the employee being notified of the decision. Once again the employee must be allowed to be accompanied by a work colleague if they so wish at the hearing of the appeal.

• The result of the appeal must be given to the employee within 14 days of the hearing and detailed grounds must be given for dismissal of the appeal.

• These time limits may be extended by mutual agreement in writing.

• The employer has a right to refuse an application for flexible working on certain stated grounds:
o Additional costs would be incurred.
o There would be a detrimental effect on the business.
o Inability to reorganise work amongst existing staff or inability to recruit additional staff.
o There would be a detrimental impact on quality of work or performance.
o There would be insufficiency of work during the changed periods the employee proposes to work.
o The proposed arrangement would interfere with planned structural business changes.

In other words the employer can refuse if it is of the opinion that the arrangement would be unworkable due to business needs.

It is always preferable to reach a mutual agreement on flexible working within the workplace if possible. If the application is refused at appeal stage the employee could still raise a grievance under the internal grievance procedure.

Where agreement cannot be reached other options are:

• Referral to the formal ACAS Arbitration Scheme; or

• In the final analysis, complaint to an employment tribunal if they employee feels that the employer is unjustifiably refusing the application.

Note that there are time limits and any application to an employment tribunal must be made within 3 months of the date that the employer’s decision of appeal is notified.

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