The right to request flexible working
From Spring 2014, all employees have the statutory right to request flexible working, whether or not they are caring for children or an adult. At present this statutory right is restricted to employees with caring responsibilities. (An employee is someone who works under a contract of employment, regardless of whether or not this is written down.)
Anyone can make a request for a change in working conditions. However, the statutory right to request flexible working is restricted to certain employees who:
- have been in their job for at least 26 weeks; and
- are caring for an adult (who is a partner or relative living at the same address); or
- are the mother, father, adopter, guardian or foster parent of a child under the age of 17 (or 18 if the child is disabled) or their partner and have parental responsibility for the child.
The formal statutory procedure for requesting flexible working
There is a formal statutory procedure to go through when requesting flexible working:
- The request must be in writing and dated.
- It must set out the working pattern being asked for and how the employer could meet the request.
- Employers can ask the employee to use a standard form to make an application but should not disregard the request just because the employee has not used the form.
- Only one formal request for flexible working can be made in any 12-month period.
- The employer must seriously consider the application and can only reject it for a “business reason”. For example, such a reason could be that the work cannot be shared out among other staff; other people cannot be recruited to do the work; or the company would not be able meet customer demand if it met the request.
- Following the request, the employer must arrange a meeting to discuss it.
- The employee has the right to bring a workplace companion or union representative, who has the right to paid time off to attend the meeting.
- The employer must then write to the employee within fourteen days of the meeting, either agreeing to the new pattern of work or setting out clear business reasons why they have rejected it.
Make sure that you make it clear if you want the change to be temporary. Any change to a flexible work pattern will be permanent change to your terms and conditions unless you and your employer agree otherwise.
Refusal to working conditions changes and discrimination
If an employer refuses to allow a worker to reduce their hours, this could amount to indirect sex discrimination. In one case, the Court of Appeal held that a refusal to allow an employee to work on a job-share basis could not be justified because the employer had not shown that the job could not be done on that basis. In another case, a refusal to allow part-time work was both direct and indirect discrimination and a breach of contract.
Requesting a change to working conditions following maternity, paternity or adoption leave
Women returning to work after maternity leave (as well as fathers returning from paternity leave and parents who are returning after adoption leave) often find they want to a more flexible pattern of work to fit in with looking after a new baby or child. The Equality and Human Rights Commission advises employers that it is a good idea to have discussed flexible working options with them before they go on maternity leave and to “keep in touch” during their absence from the organisation. Make a request for flexible working before returning to work wherever possible.
The role of trade unions
Allowing people to have a good work/life balance with flexible working conditions is a key priority for trade unions. Workplaces with union recognition generally have better arrangements for allowing people to change their working conditions to fit their work around family commitments like looking after children. Any additional rights to flexible working (on top of the statutory provisions) that unions have negotiated will be included in your employment contract.
How to make a request for flexible working
You can only make one formal request for flexible working in any 12 month period, so it is important you get it right. Take time to make sure that you have included all the most important information in order to make the best possible case for what you are asking for. Think about your objectives in the same way as you would for a business case and show how the needs of the business can be balanced with your own needs.
The following checklist may help you to do this:
- Always start with an informal request but still prepare carefully as if for a formal request.
- If possible, talk through the request with someone first – a member of HR or your union rep for example.
- Keep a regular dialogue with your employer flowing during any period of absence from work.
- Make sure that you are aware of any internal procedures and paperwork you need to follow or use.
- Be as specific as possible about your request.
- Think carefully before making it. Consider how the changes you are asking for may affect you and your family and be realistic. There may be financial implications or they may impact on your well-being or career for example.
- Remember that the change will be permanent unless you request it to be for a temporary period, so consider whether you want a permanent change or you anticipate that you will need flexibility during a transitional period (until a child starts nursery or school for example).
- Think about the impact the changes you are asking for may have on your colleagues and about any potential concerns your employer might have, such as impact on performance. Set out a clear argument alongside positive solutions and options for the employer to consider.