The Government has issued final versions of the two sets of Regulations dealing with requests for flexible working: (i) The Flexible Working (Procedural Requirements) Regulations 2002 and (ii) The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002. These Regulations will come into force on 6 April 2003.
In Employment Alert No. 54, we explained the mechanics of an employee making a request for flexible working as described in the then draft Regulations. The mechanics have not changed materially. However, we thought that this would be an ideal opportunity to bring together what the final Regulations and the Employment Rights Act say.
1. An eligible employee (see "Who will be Eligible to Make a Request" below) may apply to his/her employer to change his/her terms and conditions of employment if the reason for the change is to enable him/her to care for a relevant child. The request must:
(i) be in writing;
(ii) set out the change requested and its start date. The request may be to change hours of work, times of work or place of work only;
(iii) state how he/she thinks the change may affect the employer and how the employer might accommodate it;
(iv) explain that the child is a relevant child;
(v) state whether and when any previous application has been made; and
(vi) be dated.
A request may be made no later than 2 weeks before the child's 6th birthday (or, if disabled, 18th birthday). Only 1 application may be made in every 12 month period.
2. The employer must arrange a meeting with the employee within 28 days of the request being made, unless the request is granted, in which case no meeting is necessary but the employer must inform the employee, in writing, that his/her request has been granted, clarifying what the agreed change is and from when it will take effect.
3. Within 14 days of that meeting the employer must write to the employee either agreeing the new arrangements and giving the date from which the change will take effect or giving business reason(s) why the application is rejected. This notice must be in writing, set out the appeal procedure (see below) and be dated. The employer may only refuse the application if he thinks that one or more of the following business reasons apply:
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
planned structural changes.
The employer must explain why the relevant ground(s) apply.
4. The employee has the right to appeal against the decision within 14 days of receiving the written decision. Any request for an appeal must (i) be in writing, (ii) set out the grounds of appeal and (iii) be dated.
5. The employer must hold a meeting with the employee to discuss the appeal within 14 days after receiving notice that the employee wishes to appeal (unless the employer upholds the appeal and grants the change requested within that 14 day period, in which case no meeting will be necessary).
6. The employer must notify the employee of its decision on the appeal within 14 days of the meeting. This notice must (i) be in writing, (ii) give the grounds for refusal or if the appeal is upheld, specify the variation agreed to and give the date from which the change will take effect and (iii) be dated.
7. The employer and employee may agree between them to extend any of the time limits set out above as long as the agreement is (i) recorded in writing, (ii) specifies the extension agreed, (iii) is dated and (iv) sent to the employee.
8. If the person who would usually consider the employee's request on behalf of the employer (say a line manager) is absent from work on holiday or on sick leave, the 28 day period in which the initial meeting should be held (point 2 above) will only start to run on either the day the individual returns to work or 28 days after the application was made, whichever is the sooner.
9. The employee has the right to be accompanied at all of the meetings referred to above by a fellow employee. If the companion chosen by the employee is not available on the chosen meeting day, then the employer must postpone the meeting for up to 7 days.
10. In order to be "written", all of the notices above may be either delivered in traditional letter/memo format or by email.
Who will be Eligible to Make a Request?
who has been continuously employed by the employer for at least 26 weeks;
who is the parent, adopter, guardian or foster parent of a child aged under 6 (or a disabled child under 18) or the partner of or married to one of the former adults; and
who has, or expects to have, responsibility for the child's upbringing.
What are the Consequences of the Employer Failing to Comply?
1. Right to be accompanied
- If the employer does not allow the employee to be accompanied at a meeting (see 9 above) or fails to postpone the meeting to allow the employee's companion to attend, or threatens to do either, the employee may complain to an Employment Tribunal. The complaint must be made within 3 months of the date of the failure or threat (which period may be extended if the Tribunal is satisfied that it was not reasonably practicable for the complaint to be made in time). If the Tribunal finds the complaint to be well-founded, the employer will be liable to pay the employee compensation of up to 2 weeks' pay. A week's pay will be capped at the statutory maximum. When the right to request flexible working comes into force on 6 April 2003, the cap will be £260.
2. Detriment and dismissal
An employee has the right not to be caused to suffer a detriment because he made a request, exercised a right in relation to that request, or made, or threatened to make, a Tribunal claim in relation to a request. In respect of any detriment falling short of dismissal, the employee may, within 3 months, make a complaint to the Employment Tribunal.
The Tribunal may award compensation which it considers to be just and equitable in all the circumstances. This may include compensation for injury to feelings and in respect of actual loss suffered by the individual, including expenses incurred and the value of benefits. There is no limit on the amount of compensation which may be awarded, although (i) the employee must attempt to mitigate any loss suffered and (ii) if the employee's conduct caused or contributed to the detrimental act occurring then the amount of compensation may be reduced by an appropriate amount. Realistically, the injury to feelings award will probably be assessed in the same way as discrimination awards, in a £500 to £25,000 range, with awards most likely at the lower end.
If the detriment takes the form of dismissal, and the reason for the dismissal is one of those specified above, then the employee may, within 3 months of the dismissal, make a claim of unfair dismissal to an Employment Tribunal. If the Tribunal finds that the employee was dismissed for one of the above reasons, the dismissal will be automatically unfair. The employee will not have to have 1 year's service to be eligible to make such a claim but the amount of compensation payable will be based on actual loss and be subject to the cap, currently £53,500.
3. Failure to hold a meeting or notify
If the employer fails to hold either an initial or appeal meeting, or fails to notify the employee of its decision on an initial request or appeal, the employee may make a claim to the Employment Tribunal within 3 months. The Tribunal may order the employer to reconsider the request (although not to grant the request) and award compensation to the employee. The maximum amount of compensation that a Tribunal may award is 8 weeks' pay, based on the statutory maximum which, on 6 April 2003, will be £260 per week. This means that the maximum amount of any such award, as at 6 April 2003, will be £2,080.
4. Failure to specify a business reason
If an employer fails to give a statutory business reason for refusing a request or bases his decision to reject a request on incorrect facts, the employee may make a claim to a Tribunal within 3 months. If the Tribunal finds the complaint to be well founded, it may order the employer to reconsider the application and made an award of up to 8 weeks' pay (as above).
The mechanics of the regime governing the right to request flexible working have not materially changed from those set out in the first draft Regulations.
However, it is significant that, save in respect of dismissal or detriment because the employee took advantage of the regime, the maximum amount for which an employer may be liable in respect of procedural breaches of the regime is £2,040 - although £2,040 for each breach.
However, employers should warn managers that, once the regime comes into force care should be taken if they wish to dismiss, demote, discipline, give a smaller than usual bonus or no pay rise etc. to an employee who has made a request for flexible working (whether the request was granted or rejected). If the employee can show that the reason for the detriment or dismissal was the request, then significant liability could result. In addition, requests for flexible working may take the form of requests for part-time hours. Remember that (i) if the request is unreasonably rejected on the grounds that the job cannot be done on a part-time basis, this could give an employee (particularly a woman) grounds for a claim of indirect sex discrimination and (ii) that part-time employees are also protected against less favourable treatment by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2002.