Flexible working: an overview of rights

How can parents ensure that their working arrangements fit better with their childcare responsibilities? In this guide we provide an overview of the main legal rights and procedures relating to flexible working.

The statutory right to request flexible working

Employees with 26 weeks’ continuous employment can request a change to their employment terms if the change relates to: a change to the hours of work; a change to the times required to work; or a change to the place of work (between home and the workplace). 

Employers must deal with requests in a reasonable manner and must notify the employee of the decision (including any appeal) within the ‘decision period’, which is three months – unless a longer period is agreed between the parties.

What should a flexible working request include?

Check the employer’s policy (if there is one), but generally the employee should:

• make the request in writing, date it and state that it is an application made under the statutory procedure
• specify the change that they are seeking and when they wish the change to take effect
• explain what effect, if any, they think the change would have on their employer and how any such effect could be dealt with; and
• state whether they have previously made an application to their employer and, if so, when (an employee cannot make a further application to the same employer before the end of the period of twelve months beginning with the date on which the previous application was made).

On what grounds can an employer refuse a flexible working request?

An employer can refuse a flexible working request where:

• the employee fails to meet the eligibility criteria
• the flexible working request is invalid and does not meet the points set out above; or
• any of the following ‘legitimate business reasons’ apply meaning that it cannot accommodate the request:
  • The 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.
  • Planned structural changes.

The government is planning to reform the statutory flexible working procedure and is proposing to make it a ‘day one’ right (replacing the requirement for 26 weeks’ continuous employment), reviewing whether the eight business reasons above remain valid and considering whether to require the employer to suggest alternatives if the original request is not accepted.The grounds for refusing a flexible working request are broad in scope, meaning that in practice employers can turn down a request quite easily provided that they have followed the statutory procedure. Up to eight weeks’ pay can be awarded in compensation if an employer fails to follow the statutory procedure.

Sex discrimination

Far more women than men currently seek flexible working arrangements. If an employer rejects a woman’s flexible working request, she may have a claim under both the statutory flexible working procedure and for indirect sex discrimination. However, note that the former only attracts a maximum of eight weeks’ pay as compensation whereas potential compensation for indirect sex discrimination is unlimited.

Indirect sex discrimination occurs where:

• an employer applies a provision, criterion or practice (PCP) (eg. employees must work night shifts)
• the PCP puts those of one sex at a particular disadvantage to those not of that sex
• the PCP puts the individual employee at that disadvantage; and
• the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Example

Jennifer works at Quick Sell Ltd and has requested to start work an hour earlier and finish at 5pm, rather than 6pm, so that she can pick her daughter up from nursery before it closes. Quick Sell’s provision, criterion or practice (PCP) of the working day finishing at 6pm places Jennifer at a disadvantage on the grounds of sex because a woman typically has more child-care responsibilities than a man. Unless Quick Sell can justify the PCP by showing it to be a proportionate means of achieving a legitimate aim, Jennifer would have a claim for indirect sex discrimination if the employer refuses her request.

Unpaid parental leave

Parental leave is a form of statutory unpaid leave available to some working parents in order to care for a child. An employee must have at least one year’s continuous employment to be eligible for parental leave.

It provides for up to 18 weeks’ leave in respect of each child. Under the default statutory scheme an employee can only take a maximum of four weeks’ parental leave each year, and leave can only be taken in blocks of a week unless the child is disabled. There is a degree of flexibility as to the time at which parental leave is taken and the way in which the total leave entitlement may be split up into a number of shorter periods, in comparison to other types of family-related leave.

Who is eligible?

Employees (not workers) who:

• have at least one year’s continuous service, unless the child is entitled to disability living allowance
• have, or expect to have, responsibility for a child
• are taking the leave for the purpose of caring for a child; and
• are taking the leave before the child’s 18^th birthday.

How does an employee exercise this right?

An eligible employee must:

• give 21 days’ notice to the employer of the beginning and end dates of the requested leave; and
• comply with any request by the employer to produce evidence of entitlement to parental leave.

Shared parental leave (SPL)

Certain qualifying employees can take SPL in the first year of their child’s life or in the first year after a child is placed with them for adoption and may be eligible for shared parental pay. The SPL scheme provides a maximum of 50 weeks of SPL and 37 weeks of shared parental pay for eligible parents to take or share, less any period of maternity/adoption leave and pay already taken.

The mother or primary adopter must elect to curtail their entitlement to statutory maternity or adoption leave and share the remaining period with the child’s other parent as SPL.

SPL can either be taken consecutively or concurrently, as long as the total time taken does not exceed what is jointly available to the couple. There are various notification requirements that must be complied with by both parents before SPL can be taken.

Time off for dependents

Employees (not ‘workers’) have the right to take a ‘reasonable’ amount of unpaid leave in order to take necessary action to deal with particular situations affecting their dependents and to make any necessary long-term arrangements. It is intended to allow an employee time off to deal with domestic emergencies.

A dependent could be a spouse, partner, child, grandchild, parent or someone who depends on you for care. Situations include illness, bereavement and the unexpected disruption or termination of care arrangements. Employees must tell their employer the reason for their absence as soon as reasonably practicable.

In practice, employers may be flexible on the amount of time and may continue to pay the employee depending on the circumstances and on their own policy. 

Conclusion

This guide focuses on the statutory minimum rights to various flexible working arrangements that employees may be entitled to. It is important to note that many employers will have their own policies that may be more flexible and/or generous than the basic statutory schemes set out in this note.

For further advice on eligibility and the process for applying for, or dealing with, any flexible working requests or any other family-related leave entitlements, please contact the Birketts Employment Team.