Flexible working

Contents
1. Flexible working 2. What is it? 3. Who can ask for it? 4. How to apply 5. What your employer must do 6. The meeting 6.1. Your employer's decision 7. Right of appeal 8. Employment tribunal/Industrial tribunal 9. Employee protection 10. Other rights

Employees often feel torn between their work commitments and their home responsibilities, particularly if they have young or disabled children or if they care for elderly relatives. Employees may have to take time off to deal with domestic 'emergencies', but will be concerned that their work position is vulnerable in consequence. They may feel obliged to put in a lot of overtime to compensate. The result, very often, is high levels of employee stress or sickness.

Flexible working gives employees the chance to fit other commitments and activities around work and improve their work-life balance without jeopardising their work position. Increasingly, employers recognise the benefits to their business (in terms of improved productivity, a lower absence rate and a more motivated, less stressed workforce) of enabling employees to feel more in control of their working life.

Those employees who have young or disabled children or who care for an adult have a statutory right to request flexible working, but those without the right may find flexible working helpful too.

Find out what flexible working is and how to apply for it.

'Flexible working' is a phrase that describes any working pattern adapted to suit your needs. Common types of flexible working are the following:

• Part-time: working less than the normal hours, perhaps by working fewer days per week
• Flexi-time: choosing when to work (there's usually a core period during which you have to work)
• Annualised hours: your hours are worked out over a year (often set shifts with you deciding when to work the other hours)
• Compressed hours: working your agreed hours over fewer days
• Staggered hours: different starting, break and finishing times for employees in the same workplace
• Job sharing: sharing a job designed for one person with someone else
• Home working: working from home

You can combine any of these working patterns to come up with something to suit your circumstances.

Anyone can ask their employer for flexible work arrangements, but the government has introduced a statutory right in order to encourage applications. Having a statutory right means that your employer must consider your request seriously in accordance with a set procedure and may only refuse your request if certain prescribed reasons apply. It also means that you have a right of appeal against a refusal of your request by your employer.

To be eligible to make a statutory flexible working request, you must:

• Be an employee
• Have worked for your employer for at least 26 weeks on the date you make your request
• Not have made another statutory request during the past 12 months

You can only make an application to care for either:

• A child under 17 (six in Northern Ireland).
• A disabled child who is under 18, and who is in receipt of disability living allowance.
• An adult who requires care.

In relation to children, you can request flexible working if you are either:

• The mother, father, adopter, guardian, special guardian, foster parent or private foster carer of the child or a person who has been granted a residence order in respect of a child
• Married to or the partner or civil partner of the child's mother, father, adopter, guardian, special guardian, foster parent or private foster carer or of a person who has been granted a residence order in respect of a child

In relation to adults, you can request flexible working if you care, or expect to be caring, for either:

• A spouse, partner, civil partner or relative
• Someone who lives at your address

A relative is a mother, father, adopter, adoptee, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step-relatives, adoptive relationships and half-blood relatives are also included.

Under the law your employer must seriously consider any application you make, but they don't have to agree if there's a good business reason not to. You have the right to ask for flexible working - not the right to have it.

If you have the statutory right to apply, then there is a process you must follow.

Your application should set out your desired working arrangement and how you believe your employer can give effect to it.

In order for a flexible working application to be valid, it must contain certain information. It must:

• Be dated and in writing
• State that it is being made under the statutory right to make a flexible working request
• Confirm that you have, or expect to have, responsibility to care for a child or adult
• Confirm your relationship with the child or adult in question
• Specify the flexible working arrangement applied for
• Explain what effect, if any, you think the proposed change may have on your employer's business and how you believe your employer can deal with any such effect
• State the date when you want the change to start
• State whether you have made any flexible working applications to your employer before and, if so, when

You should allow plenty of time between the date of the application and the date you expect the flexible working arrangement to start. This is to allow your employer time to look at your application and assess whether or not they can accommodate it.

You do not have to give proof of the caring relationship. Employers should make the decision on whether or not to grant a request solely on business grounds.

In addition, you do not have to show:

• That the child or adult in question requires any particular level of care.
• Why you, rather than anyone else, must provide that care.

However, if your employer thinks that you are abusing the right to request, e.g. that you don't have a qualifying relationship with the child or adult in question, they can ask for evidence. You will then have to decide whether it is better to co-operate (although you are not obliged to do so) rather than risk your employer invoking its disciplinary procedure in order to investigate its concerns and all the inconvenience to you that that will cause.

You should be aware that if your flexible working request is accepted, this may lead to a permanent change to your contractual terms and conditions. If you are concerned about this, you could, perhaps, either suggest that you work flexibly over a trial period or ask your employer to agree that the arrangement will be temporary.

In response to a statutory request for flexible working, your employer should arrange a meeting with you within 28 days of you receiving your application.

Your employer should arrange the meeting at an appropriate time and place that is convenient for all.

You have the right to be accompanied by a work colleague or certified trade union representative working in your employer's business.

The companion can address the meeting and confer with you during it, but may not answer questions on your behalf.

If your companion is unable to attend the meeting, you must seek to rearrange the meeting. It should take place within seven days of the date of the original meeting.

Your employer must pay both you and your companion for the time off from your normal working duties to attend the meeting.

If you are unable to attend the meeting, you should contact your employer as soon as possible to explain your absence and allow your employer to rearrange it.

If you fail to attend the meeting more than once without a reasonable explanation, your employer can treat your application as withdrawn, which will mean that you will not be able to make a further application for 12 months.

Your employer must notify you of their decision within 14 days of the meeting to discuss your flexible working request.

If your employer accepts your flexible working request, they must write to you:

• Detailing your new working pattern
• Stating the date on which it will start
• Stating that the arrangement means a permanent change to your terms and conditions of employment (unless agreed otherwise)

If your employer decides that they cannot accommodate any kind of flexible working for you, they must, in writing:

• State which of the listed business grounds apply as to why they cannot accept your request
• Provide an explanation of why the business reasons apply in the circumstances
• Set out the appeal procedure

Your employer can only reject a flexible working request on set grounds.

These are:

• Planned structural changes
• The burden of additional costs
• A detrimental impact on quality
• The inability to recruit additional staff
• A detrimental impact on performance
• The inability to reorganise work among existing staff
• A detrimental effect on ability to meet customer demand
• Lack of work during the periods you propose to work

If you disagree with your employee's decision, you have a right of appeal. If you wish to exercise that right, you must make your appeal in writing within 14 days of receiving your employer's written notice refusing your request.

In the appeal notice, you must set out the grounds for making the appeal. There are no restrictions on the grounds for appeal.

Your employer must arrange an appeal meeting within 14 days of receiving your appeal notice.

Where practicable, the appeal should be heard by a different manager.

The principles on the right to be accompanied, pay for attending the meeting and what happens if you fail to attend are the same as for the initial meeting.

Your employer must inform you of the outcome of your appeal in writing within 14 days after the date of the meeting.

You may make a complaint to an employment tribunal (in England Wales or Scotland) or an industrial tribunal (in Northern Ireland) where either:

• Your employer's decision to reject your application was based on incorrect facts
• Your employer didn't follow the procedure properly, e.g. they failed to hold the meeting to discuss the application within the timescale or where they failed to provide a complete and proper explanation to you of their decision to refuse your request

You cannot make a complaint where you simply disagree with the business grounds your employer gives.

However, if a case is brought jointly with other legislation, e.g. the Equality Act 2010 (under its provisions regarding sex discrimination)/Sex Discrimination (Northern Ireland) Order 1976, or other discrimination legislation, the tribunal may seek to examine how the request was considered.

You may make a complaint to a tribunal if you suffer a detriment or are dismissed because:

• You make - or propose to make - an application to work flexibly
• You exercise - or propose to exercise - a right under the flexible working request procedure
• You make - or state your intention to make - a complaint to a tribunal in respect of a flexible working application
• You exercise - or seek to exercise - your right to be accompanied at a meeting to discuss your request or you accompany another employee to such a meeting

A detriment is where your employer acts - or deliberately fails to act - in a way that results in you being unfairly treated, e.g. where your employer fails to offer you promotion, facilities or training opportunities that your employer would otherwise have offered or made available to you.

Dismissal means the termination of your employment, with or without notice, including redundancy selection and the non-renewal of a fixed-term contract. It could also include constructive dismissal, i.e. where you resign believing your employer has substantially breached your contract of employment.

Other rights that help you take time off work to care for others are:

• Parental leave, where you can book blocks of unpaid time off to care for young children
• Time off for dependants, which gives you unpaid time off to cope with family emergencies