Flexible Working

A number of publications are available to help employees formulate a written request for a contract variation and to help employers follow the correct procedures to give proper consideration to such requests. The DTI has two new booklets, a basic guide PL516 Flexible Working - The Right to Request, and a more advanced guide PL520 Flexible working - The right to request, and the duty to consider: guidance for employers and employees. They are available at www.dti.gov.uk/publications/index.htm .

ACAS also has a new advice leaflet Flexible Working which, in addition to providing guidance for both employees and employers on the making and handling of requests for contract variations, gives advice to employers on introducing flexible working policies and resolving disputes by arbitration. This booklet is available at www.acas.org.uk/publications/pdf/flexibleworkin2.pdf .
Payroll Briefing 18 - 28 March 2002

Flexible Working Rules Finalised

The Employment Act 2002 introduced a new right for employees with young children to ask their employers to vary their contractual terms to fit in better with their domestic circumstances. Regulations have now been finalised that define the way in which an application for a contract variation must be presented by an employee and how the employer must process it. The statutory procedures make serious demands of both the employee and the employer. The new procedures apply from 6 April 2003.

Employees are entitled to seek a contractual change to their hours of work, times of work and place of work in order to care for a child if they

• have 26 weeks' service, and either
• are the mother, father, adopter, guardian or foster parent of a child that is not yet 6 years old, or not yet 18 years old if disabled, or
• are married to or the partner of one of those persons, and
• will have responsibility for the upbringing of the child.

What the employee must do

An application must be made in writing not later than the child's 6th birthday, or 18th birthday if disabled. Before making an application, employees must consider carefully whether the change to be proposed

• really meets their domestic circumstances, as another application may not be made within a year and any change cannot easily be reversed, and
• is realistic for their employer to consider and implement, and demonstrates that they understand the implications of the change on their employer's business.

There is no statutory format for the application and the DTI intends to produce a "best practice" form for employees to use. Whatever the format, the application must

• state whether the employee has made an earlier application and, if so, when
• specify the contractual change that the employee is proposing and the date on which it might become effective
• explain the effect that the employee believes the proposed change would have on the employer's business, and how the employer might accommodate that change
• explain how the employee satisfies the qualifying conditions for making an application, and
• be dated.

What the employer must do

As soon as the employer receives the application, a statutory procedure commences with strict deadlines. Any of the deadlines may be extended if both employee and employer agree and it is confirmed in writing.

If the employer accepts the proposal, the new terms and conditions must be confirmed in writing within 28 days. Otherwise, also within 28 days, the employer must meet with the employee to consider the proposal. The employee may be accompanied by another employee within the business. The intention of the meeting is for the parties to explore the proposal and find a mutual resolution. After the meeting, the employer must confirm acceptance or refusal of the application in writing within a further 14 days.

There is no statutory format for an employer to use to refuse the application and the DTI intends to produce a "best practice" form for employers to use. Whatever the format, the letter must

• state on which of the eight statutory grounds for refusal the employer is relying, and
• explain why the grounds for refusal apply to the employee's case, and
• explain the appeals procedure.

The eight statutory grounds for refusing an employee's application are:

• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to re-organise 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
• planned structural changes.

If the employee wishes to appeal the employer's decision, this must be done within 14 days. Within a further 14 days, the employer must either uphold the appeal and confirm the changes in writing, or convene an appeal meeting. The employee may again be accompanied by a work colleague. Within 14 days of the appeal hearing, the employer must either uphold the appeal and confirm the new terms and conditions, or explain in writing the decision to continue to refuse the application.

As a last resort, if the employee believes that the employer has failed to follow the procedures, or has not allowed the employee to be accompanied at the meetings, or has made the decision based on incorrect facts, a complaint may be made to an employment tribunal. Compensation of up to eight weeks' pay may be awarded.
Payroll Briefing 15 - 4 February 2002

Employment Act 2002

The Employment Bill received Royal Assent on 8 July and became the Employment Act 2002. In addition to the new maternity, paternity and adoption rights, there are a number of other significant employment rights that will come into force over the coming year. A short description of these provisions, their current status and their likely implementation dates are given below.

Flexible Working

This is a new provision that gives working mothers and fathers the right to ask their employers to consider a change in their working hours, working times or place of work in order to care for a child under the age of six or a disabled child under the age of 18. The Act and the coming Regulations set out a carefully defined procedure that starts with a parent making a written request to the employer, setting out the desired working pattern and explaining how the employer could accommodate the request. This initial approach is followed by a series of letters and meetings and, if necessary, appeal meetings. If the parent believes the employer has unreasonably refused the request, a complaint may be made to an employment tribunal.

The draft Regulations are subject to consultation until 10 October and a copy of the consultation document is available at www.dti.gov.uk/er/FlexConsultation.pdf . The Regulations are expected to be approved by Parliament by the end of the year and take effect in April 2003.
Payroll Briefing 5 - 28 August 2002

Flexible working

The Employment Bill, currently completing its stages in the House of Lords, will introduce the new statutory rights to paid adoption and paternity leave, and make significant changes to the maternity provisions. It includes many other employment measures, including the introduction of statutory dismissal and grievance procedures and paid time off for union learning representatives. The Government has introduced a new provision into the Bill that will require employers to consider seriously requests from workers for a change in their hours, times and place of work in order to care for a child.

Applications from employees must be made before a child's sixth birthday, or eighteenth birthday for a disabled child, and may not be made more frequently than once a year. Employers may only refuse an application on one or more of a number of defined grounds and both employer and employee must follow a precise step-by-step procedure and timetable if applications are refused and appealed. Employees will have the right to be accompanied at meetings with the employer and there will be a new right to paid time off to accompany an employee at such meetings.

Complaints may be presented to an employment tribunal if the employer fails to follow the procedure, bases the decision on incorrect facts, dismisses the employee or subjects the employee to detrimental treatment.

The new measures are expected to come into law from April 2003.
Payroll Briefing 222 - 24 April 2002