It's just over a year since new rights were introduced for working parents to ask to work flexibly. The mechanisms for making an application are laborious, so it's important for unions to make sure that members know what they have to do.
In this article, Thompsons' Head of Equal Rights, summarises the law and answers some commonly asked questions.
The Law
In April 2003, the Government introduced a new right for working parents. Anyone with a child under 6 (or 18 if disabled) and who has worked for the same employer for 26 weeks can now ask for a change in their terms and conditions of service in order to care for that child.
The change can relate to the hours they have to work, the times they work, or the location in which they work. According to the explanatory notes that accompany the legislation, the requests can cover 'work patterns such as compressed hours; flexitime; homework; jobsharing; teleworking; term-time working; shift working; staggered hours; annualised hours; and self-rostering.'
FREQUENTLY ASKED QUESTIONS
Who qualifies?:
Apart from the qualifying period of 26 weeks, the employee has to be the mother, father, adopter, guardian or foster parent of the child (or be married to or be the partner of that person) to have the legal right to ask their employer to work flexibly. Partners of same-sex couples are included, but agency workers are specifically excluded, as are members of the armed forces.
How should the application be made?:Â
The application must be made in writing. It must specify the change applied for and the date from which it is requested. The applicant must also 'explain what effect, if any, [he or she] thinks making the change applied for would have on the employer and how, in his [sic] opinion, any such effect might be dealt with.' It is not clear why the employee has to work this out, and not the employer. But it's crucial to do so, because failure to satisfy this requirement invalidates the application.
There is a flexible working application form available on the DTI website:Â www.dti.gov.uk/er.
What should happen next?:Â
If the employer agrees to the application, he or she must do so in writing and specify the date from which the proposed change will apply. There is no need for a meeting in these circumstances.
If he or she does not agree, the employer has to call a meeting within 28 days of the date of the application to discuss it. If the employee is off sick or on holiday, then the time limit can be extended to 28 days of his or her return to work. The employee has the right to be represented at this meeting, but only by a fellow worker. The employer then has to notify the employee of the decision within 14 days of that meeting, either agreeing to it or setting out the grounds for refusal in writing and explaining, in a couple of paragraphs (according to the Government's guide), why those grounds apply.
The employee has the right of appeal by giving notice within 14 days of the date of the refusal. Again, there is an appeal form on the DTI website. That hearing must be held within 14 days of the date on which the notice of appeal is lodged. The employer must notify the employee of his or her decision within 14 days of the date of the appeal hearing.
Once the change is agreed, it will be permanent unless both parties expressly agree that the change is for a fixed period of time.
What are the grounds on which an employer can reject the application?:
Employers have a wide number of reasons that they can rely on to reject the application:Â
- the burden of additional costs
- a detrimental impact on their ability to meet customer demand
- an inability to reorganise the work amongst existing staff, or recruit additional staff
- a detrimental impact on quality or performance
- insufficient work during the hours when the employee intends to work
- planned structural changes.
What can an employee do if the application is rejected?:
Very little, is the honest answer. An employee can complain to a tribunal on just three grounds (within three months of the decision) that there was:Â
- a failure to follow procedureÂ
- a failure to provide 'a sound business reason'Â
- a decision based on 'incorrect facts'.Â
What cannot be challenged is the employer's decision itself. However much an employee disagrees with the decision, and however blinkered or ill judged it might be, the tribunal has no power to question the employer's business reasons.
How much compensation is an employee entitled to?:Â
Again very little. For those few employees who find that they are in a position to take their employers to tribunal, compensation is limited to a maximum of eight weeks' pay, currently capped at £270 per week.
The maximum compensatory award is therefore £2160. Hardly a disincentive for employers.
Is the SDA more effective?:
The new legislation overlaps to some extent with the existing provisions of the Sex Discrimination Act 1975, which allows a worker to claim indirect discrimination on the ground of sex. This means that where an employer requires, say, full time work, the worker can argue that this has more of an impact on women than men and so indirectly discriminates against them. If the employer cannot objectively justify the policy, he or she will be in breach of the Act.
A man may be able to claim direct discrimination in the same circumstances, using the argument that if he were female then he would also have been allowed to work part time. The advantage of the flexible work regulations, of course, is that they expressly apply to both men and women.
And there are other advantages to making a claim under the SDA. Compensation is unlimited; it applies to workers and not just employees; there is no need for a 26 week service requirement; and the employer has to objectively justify their decision not to allow part time or flexible working failing which the tribunal may make a finding of unlawful discrimination.
Does the applicant have to use the regulations?:
There is an expectation that employees should follow through the procedure set out in the regulations before launching a sex discrimination claim. The question is whether a failure to do that will affect the attitude of a tribunal, in terms of its ultimate decision and its award of compensation.
Whether or not employees use the regulations (and we recommend that they do), they must ensure not to overlook the three month time limit for pursuing a sex discrimination application.