Right to apply

From April parents will have the right to apply for special working arrangements. Jonathan Maude reports

Under the Employment Act 2002 there are new procedures for employees with childcare responsibilities to request the right to work on a flexible basis. The Government has shied away from giving employees the prescribed right to work part-time or on a flexible basis, but there will be a right to request it as from 6 April.
The procedures for making a request and responding are fairly stringent and must be followed closely. The employee should write to the employer at any time before the fourteenth day prior to the child's sixth birthday, or if disabled the child's eighteenth birthday, and request a variation to the contract of employment. Any request agreed by the employer will amount to a variation to the contract of employment and, as such, cannot be changed once agreed, unless the right to vary is expressly reserved or both employer and employee agree to a subsequent variation.
The employee also needs to qualify to make the request. The employee will require a period of no less than 26 weeks continuous employment at the time the request is made, and must be the child's mother, father, adopter, guardian or foster parent (or married or the partner to such a person) and have, or expect to have responsibility for the child's upbringing. The employee can only make one request per 12-month period.
The employee must specify the changes and the date when they should become effective. Also, the employee must explain what effect he or she thinks the changes will have on the employer and how the effect can be dealt with. The employee needs to indicate that the change is to enable them to care for someone who, at the time of the application, is a child as specified in the act. The change itself can only relate to specific issues including hours of work, place of work and times the employee is required to work. Accordingly, there is a fairly significant burden on the employee to make the case and give any procedural issues some considerable thought.
Once the request is made, the onus passes to the employer. The employer can either agree the request within a 28-day period, or have a meeting with the employee within the same time period in order “to explore the desired work pattern in depth”. The 28-day period within which the meeting should take place can be extended on certain grounds.
If the employer agrees the variation, it must be confirmed in writing, specifying the variation agreed to and the date it is effective. A prudent employer will ensure that any change is documented in a new contract of employment that may include a reservation of the right to amend the terms of the employment if the flexible working arrangements prove to be unsatisfactory.
Any refusal must be on one of eight fairly specific grounds that cover almost any eventuality that may arise. For example, a burden of additional costs and impact on quality and performance are covered. The employer will need to give a sufficient explanation of why the ground applies to the business, therefore resulting in the refusal of the application. Several examples of employers' explanations are expected in guidance to be published before the regulations come into force and it appears the employer can identify one of the reasons and use standard paragraphs in order to justify any refusal. The employee's remedy lies with the Employment Tribunal, which can verify whether or not the employer has reached the decision on “incorrect facts” and whether the employer has followed all the proper procedures. The Employment Tribunal does not have the power to question the commercial validity of the employer's decision, or to substitute its own judgement on the business reasons for that of the employer.
If the employee is able to prove a breach of procedure, or that an application was rejected “on incorrect facts”, any monetary award is limited to eight weeks pay. A week's pay is also limited to the statutory maximum upper limit, which will be £260 per week from February.
If an employer refuses the request, an employee will be entitled to appeal the decision within 14 days. Any appeal decision must be given within 14 days of any appeal meeting and, again, the grounds of any refusal must be specified. Throughout the process the employee is entitled to be accompanied by a companion.
The usefulness of the right to request flexible working remains to be seen, especially in view of the fact that the right is simply to request, rather than to be granted flexible working arrangements. It is not unreasonable to assume that discriminatory claims may still be brought in connection with any failure on the part of the employer to comply with the regulations, especially as the monetary awards may be higher in a discrimination claim than may otherwise apply if the employee were to bring a claim under the regulations.
It is unfortunate the Government has not seen fit to give employees a definitive right to require an employer to allow flexible working and it is doubtful as to whether the new flexible working rights will advance the family-friendly policies espoused.
Jonathan Maude is an employment partner at Manches