RIGHT TO REQUEST FLEXIBLE WORKING

Updated 19/11/04; links updated 22/12/05. This information updates s.28.7.6 in The Voluntary Sector Legal Handbook 2nd edition.
From 6 April 2003, parents of children aged under 6 (or under 18 if the child is disabled) and their partners have a statutory right to make a written request to their employer for more flexible working arrangements. Flexible working might include, for example, compressed hours, flexitime, home working, job sharing, teleworking, term-time working, shift working, staggered hours, or annualised hours.

To be eligible the employee must have or expect to have responsibility for the upbringing of the child; must be the mother, father, adopter, guardian or foster parent of the child, or must be married to or be the partner of the mother, father, adopter, guardian or foster parent; and must have been continuously employed by the employer for at least 26 weeks at the time the request is made.

IMPORTANT. The request is for a variation of contract, and if made will be a permanent contract variation, unless the employer and employee agree otherwise as part of their flexible working agreement . The new work pattern continues, rather than reverting to the original work pattern, even when the child reaches 6 (or 18, in the case of a disabled child).

The basic rules are:

• the request must relate to hours of work, times of work, or place of work;
• the request may be made only for the purpose of caring for a child for whom the employee has parental responsibility;
• the application must be in writing, must be dated, and must state the desired working pattern and desired start date, with an explanation of how the employee thinks the change might affect the employer and how the employee thinks the employer could deal with such effects and meet the request;
• if the employer accepts the request s/he must notify the employee in writing within 28 days of the application, stating the contract variation agreed to and the date the variation will start;
• an employer who does not accept the request must arrange a meeting with the employee to take place within 28 days of the application;
• the employer can refuse the application only if s/he considers that one or more of the following grounds applies: burden of additional costs, detrimental effect on ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work, or proposed structural changes;
• the employer must write to the employee within 14 days of the meeting, agreeing the request or fully explaining the reasons why the request has not been granted and explaining the appeal procedure;
• the employee can appeal within 14 days of notice of the employer's decision;
• the employer must then arrange an appeal meeting within 14 days of receiving notice of appeal, and must notify the employee of the outcome within 14 days after the meeting;
• the employee has the right to be accompanied by a fellow employee at any meeting with the employer;
• the employee can go to an employment tribunal only if the employer does not hold a meeting or follow the other required procedures, does not provide a legally allowed business ground for rejecting an application, or bases their decision to reject an application on incorrect facts;
• the maximum award is eight weeks pay (maximum £270 per week);
• once an application has been made, a further application cannot be made to the employer for at least 12 months from the date of the previous application.

FLEXIBLE WORKING TO CARE FOR CHILDREN

Updated 30/9/07. This information updates s.28.7.6 in The Voluntary Sector Legal Handbook 2nd edition.
Parents or adopters of children aged under 6 (or under 18 if the child is disabled) and their partner or civil partner have a statutory right to make a written request to their employer for more flexible working arrangements. From 6 April 2007, carers of adults have the same right (see below). Flexible working might include, for example, compressed hours, flexitime, home working, job sharing, teleworking, term-time working, shift working, staggered hours, or annualised hours.

From 1 October 2007 the definition of adopter is changed, and the right to request flexible working is extended to private foster carers and their spouses, partners and civil partners. These changes are in the Flexible Working (Eligibility, Complaints and Rememdies)(Amendment)(no.2) Regulations 2007 at www.opsi.gov.uk/si/si2007/20072286.htm.

ACAS's advice leaflet, updated in March 2007, and more detailed advisory booklet on flexible working, updated in April 2007, are at www.acas.org.uk/index.aspx?articleid=803 and www.acas.org.uk/media/pdf/i/t/B20_1.pdf.

Guidance from the Chartered Institute of Personnel and Development, issued in March 2006, is at www.cipd.co.uk/subjects/wrkgtime/flexwking/flexwkgfst.htm.

EXTENSION OF PARENTAL LEAVE ENTITLEMENTS

Added 30/12/01. This information updates s.28.8.1 in The Voluntary Sector Legal Handbook 2nd edition.
From 10 January 2002 there are three major changes in parental leave entitlements:

• Parental leave is extended to parents of children born or placed for adoption between 15 December 1994 and 14 December 1999. The leave must be taken by 31 March 2005 (or up to the child's 18th birthday, if the child is entitled to disability living allowance).
• Parental leave is generally available only to parents with at least one year's continuous employment with their current employer. But for parents of a child born or placed for adoption between 15 December 1994 and 14 December 1999, employment of at least one year with a previous employer can count. The year's continuous employment must have been between 15 December 1998 and 9 January 2002. The employee must give the current employer notice of the period of employment with the previous employer, and must provide such proof as the current employer reasonably requires.
• For all children who were born or placed for adoption on or after 15 December 1994 and are entitled to disability living allowance, the period of parental leave is extended from 13 weeks to 18 weeks, to be taken before the child's 18th birthday.

PATERNITY LEAVE AND PAY

See chapter 27.

ADOPTION LEAVE AND PAY

See chapter 27.

FLEXIBLE WORKING FOR CARERS OF ADULTS

Updated 30/4/07, link updated 4/5/07. This information adds a new section between ss.28.8 and 28.9 in The Voluntary Sector Legal Handbook 2nd edition.
From 6 April 2007 carers of adults have the right to request flexible working (see above). To qualify, the carer must have 26 weeks' continuous employment, not be an agency worker, and not have made another application to work flexibly under the right in the previous 12 months.

The cared-for person must be aged 18 or over and must be the spouse, partner or civil partner of the employee, a near relative of the employee, or living at the same address as the employee.

A "near relative" is a parent, guardian, parent-in-law, adult child, adopted adult child, brother, sister, half-sibling, brother- or sister-in-law, aunt, uncle, or grandparent. It also includes step-relatives, and from 3 May 2007 includes sons- and daughters-in-law.

"Caring for a person" will not be defined in the regulations, but will be included in guidance. The DTI's consultation paper said, "We expect that employees would be involved in substantial and regular care for it to be sufficient enough for them to ask for a permanent change in the contract of employment."

Despite considerable pressure to extend the right to carers of children and young people 6-17 years old, the government does not intend to do so at present.

The employer must consider the request seriously, can refuse it only for a specified business reason, and must follow the specified procedure. The procedure and the allowed reasons for refusal are the same as for parents requesting flexible working.

The Flexible Working (Eligibility, Complaints and Remedies)(Amendment) Regulations 2006 are at www.opsi.gov.uk/si/si2006/20063314.htm. For the Department for Business, Enterprise and Regulatory Reform (formerly DTI)'s detailed guidance for carers and employers go to tinyurl.com/2zru9q. For ACAS and CIPD guidance see the item above.