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Flexible working: the right to request and the duty to consider. Part 1

URN No: 07/1390/A1

Introduction

Eligibility

Making an application

Considering an application

Introduction

Flexible working opportunities benefit everyone: employers, employees and their families.  Many employers know that it makes good business sense to provide flexible working opportunities for their staff because they enable them to:

• retain skilled staff and reduce recruitment costs;
• raise their staff morale and decrease absenteeism; and
• react to changing market conditions more effectively.

For individuals, the opportunity to work flexibly can enable them to strike a better balance between their home and work responsibilities.

Some employees – parents of children under 6 (or 18 if disabled) and carers of certain adults – have a legal right to request flexible working, and their employers have a duty to consider their requests seriously.  Many employers are willing to consider requests on an informal basis, but if not there is a formal procedure for both employees and employers to follow, which is described in detail in this Guidance.

It is, nevertheless, also open to employees who do not have the legal right to request flexible working to ask their employer if they can do so: many employers are willing to consider such requests on an informal basis, while some may have their own established procedure for doing so.

Anyone thinking about changing his or her work pattern should speak to his or her employer as early as possible in order to explore what opportunities might be available.  Bear in mind that, under the statutory procedure, the process of making a request and your employer considering it can take up to 14 weeks.

This Guidance has been designed to provide advice for employers and employees about how the statutory right to request flexible working, and the duty on employers to consider requests seriously, operate.  It details the rights and responsibilities of both parties.

The right provides eligible employees with the right to request a flexible working pattern and places a duty on employers to consider their requests seriously.  Eligible employees are:

• parents with children under six or disabled children under eighteen (i.e. those entitled to Disability Living Allowance); and
• carers of certain adults.

It is important to bear in mind that, if your employer agrees to your request, this will result in a permanent change to your contract of employment.

The onus is on the employee to prepare a carefully thought-out application well in advance of when they would like the desired working pattern to take effect.  The employer then follows a set procedure to help ensure a request is considered seriously, facilitates discussion and enables both parties to gain a clear understanding of each other’s thinking.  An employer may refuse a request only where there is a recognised business ground for doing so. 

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The basic rights and responsibilities under this legislation are as follows:

Rights and Responsibilities

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Eligibility

To make an application under the statutory right the employee has to meet certain criteria. This section explains those criteria and the types of flexible working for which an employee might apply. An employee who does not meet the criteria will not be able to make a request under the statutory right, but may still approach their employer to work flexibly as many employers offer flexible working opportunities across their workforce.

Eligibility Checklist

Under what circumstances can an application be made?

Under the legislation, an application can be made only in order to help the employee to care for either a child or an adult who requires it. This may cover a range of circumstances.  For example, it may enable the employee to spend more time with their children or it may help an employee to continue caring for an adult at the point where a professional care worker’s day’s work finishes.  Under the legislation, applications cannot be made for any purpose other than caring for a child or for an adult in need of care.

Which parents can make requests under the right?

Both mothers and fathers, whether they are the biological parents or legal guardians, can make applications, as can those adopting a child and foster parents and private foster carers and people who have been granted a residence order in respect of a child. Spouses or partners of these individuals are also eligible, including partners of the same sex as long as they have or expect to have responsibility for the upbringing of the child..

What are the age limits of the child?

The employee’s child must be under six, or under eighteen where the child is disabled, for the employee to be eligible to make an application.

Which carers of adults can make requests under the right?

Carers who care, or expect to be caring, for a spouse, partner, civil partner or relative or who live at the same address as the person being cared for can make applications.  A relative for this purpose is a mother, father, adopter, 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 and half-blood relatives are also included (see “Definitions” below).

In relation to all the relatives mentioned, this includes adoptive relationships and relationships which would have existed but for an adoption i.e. the employee’s natural relatives.

NB an error has occurred in the regulations omitting daughter-in-law and son-in-law from the definition of relative. This will be rectified as soon as possible.

Bear in mind that the adult concerned will have to be in need of care for the employee to be eligible to make a request for flexible working.  Under the legislation, there is no particular level of care required in order to show the person is in need of care, but an illustrative list of types of care that might be envisaged is included in Making an application.

Which staff are covered?

The parent or carer will have to be an employee and have worked for their employer continuously for 26 weeks at the date the application is made.  Continuous employment generally means working for the same employer without a break, but this is not always the case: further information is available at http://www.dti.gov.uk/employment/pay/continous-pay/index.html.

Agency workers are not eligible.  Neither are members of the armed forces. (However, whether an employee is eligible or not, many employers offer flexible working opportunities and the employee can still approach their employer to find out what opportunities exist.)

How often can an application be made?

One application every 12 months can be made under the right. This is regardless of whether a previous application was made in respect of a different caring responsibility i.e. an employee wishing to make a request to care for an adult would still have to wait a year even if their previous request had been to enable them to care for a child.  Each year runs from the date when the application was made.  Before making a subsequent application under the flexible working legislation, employees should bear in mind that they would still need to meet the eligibility criteria at the time of their subsequent application, i.e. be caring for a child under 6 (or 18 if the child is disabled) or for an adult covered under the legislation.

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Definitions

What kind of changes can be applied for?

There is scope to apply for a wide variety of different types of working pattern.

Eligible employees can make a request to:

• change the hours they work;
• change the times when they are required to work; or
• work from home (whether for all or part of the week).

Flexible working actually incorporates a wide variety of working practices. A flexible working arrangement can be any working pattern other than the normal working pattern in an organisation. Most people are familiar with working part-time for pro-rated pay or working different shift patterns. But other ways of working that employees may consider are described here www.acas.org.uk/index.aspx?articleid=803

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Making an application

An employee’s application should set out their desired working pattern and arguments why it can be implemented.   The initial onus is therefore on the employee to provide a written application to their employer well in advance of when the change is to take effect.  This section explains the information that must be included for an application to be valid and the issues that the employee will want to consider in preparing their application.

Form FW(A): Flexible Working Application Form (see Related Documents) may be used to make a request, although its use is not mandatory: an application can be made in whatever form is most suitable to the employee, e.g. a letter to the employer, or on a form provided by the employer or by e-mail.   Form A, though, will help the employee to ensure that all the minimum necessary information is provided and avoids any delay.  The following table lists all the points that should be covered in the application in order for it to be valid and for it to be considered by an employer:

Application checklist

What information should an application contain?

The checklist provided above represents the minimum requirements for an application to be valid.  But the level of detail, which an employer might need in making his decision, will depend on the desired changes to the existing working pattern. In all cases it is in the employee’s interest to be as clear and explicit as possible.

The written application must state the date when the employee would like the new working pattern to start. The proposed date should allow time for the application to be considered and implemented. There is no set time, but an employee can expect it to take around 14 weeks or longer if a problem arises.  If making their request to care for a child, the employee must also state their relationship to their child, e.g. they are the adoptive father of a child aged under six years old and should confirm that they have responsibility for their upbringing; or, for the carer of an adult, state their relationship to that adult. They must also state if and when any previous application was made.

Will my employer ask for evidence or proof that I need the new working pattern in order to meet my caring responsibilities?

It is always helpful and good practice to provide your employer with as much information as possible, including evidence of a caring relationship – although this is not required by the legislation.  In some circumstances, an employer might wish to be satisfied that a request is being made in good faith e.g. in order to care for an adult, but there is no entitlement under the legislation to ask for proof of either parental or caring responsibility.  An employer should take the decision on whether or not a request can be granted on business grounds rather than the employee’s personal circumstances.  Employers should, however, bear in mind their obligations under other legislation, such as discrimination legislation. ( see How the Right Interacts with Other Legislation).

Employees are not required under the flexible working legislation to demonstrate that the child or adult in question requires any particular level of care.  For example, an employee asking for a change in hours in order to care for her elderly mother will not need to show that her mother is unable to cope alone or that she qualifies for disability living allowance.  Nor will employees be required to demonstrate why they personally are needed to provide that care.  For example, a father asking for reduced hours in order to care for his child will not be required to demonstrate why the care cannot be provided by the mother or by somebody else.  However, requests for flexible working can only be made for the purpose of providing care, and not for some other purpose.  An employer who suspects abuse of the right, for example because he or she suspects that an employee does not genuinely have a qualifying relationship with the child or adult in question, might reasonably request evidence (if this is available) and, in some circumstances, invoke the company’s disciplinary procedure.

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What types of care are relevant?

Carers’ patterns of care-giving will vary considerably from individual to individual, both in the nature and the extent of the care given.  The sort of care-giving activities that carers of adults who request flexible working are likely to be involved in to a greater or lesser extent include:

• help with personal care (e.g. dressing, bathing, toileting);
• help with mobility (e.g. walking, getting in and out of bed);
• nursing tasks (e.g. daily blood checking; changing dressings);
• giving/supervising medicines;
• escorting to appointments (e.g. General Practitioner (GP), hospital, chiropodist;
• supervision of the person being looked after;
• emotional support;
• keeping the care recipient company;
• practical household tasks (e.g. preparing meals, doing shopping, domestic labour);
• help with financial matters or paperwork.

This is not an exhaustive list: some activities feature more prominently for some groups of carers than others.  Carers of older people, for example, may need to ensure proper eating, while carers of people with mental health problems may need to order and supervise medication.  Carers of people who have mental problems and who are in paid work may also need to help the person they care for with routine tasks such as getting to work.

What impact will a successful request for flexible working have on my employer’s business?

The application provides the employee with the opportunity to set out the reasons why their preferred working pattern is compatible with the needs of the business, as far as they are able to tell.  It must therefore provide an explanation of what effect, if any, the employee thinks the proposed change would have on the employer and how they feel any such effect might be dealt with.  For example, the employee may argue that arriving half an hour later will have minimal impact on the business as this is the quietest time of the day and they can make up the time during the lunch period when it is far busier.  Evidence shows that applications for flexible working patterns succeed where they are soundly based on the business needs of the employer.

Will the change of working pattern be permanent?

A request that is made and accepted under the statutory right will normally be a permanent change to the employee’s contractual terms and conditions.  The employee has no right to revert back to the previous working pattern (unless otherwise agreed).  So, for example, if an employee’s new flexible working pattern involves working reduced hours, he or she has no right to revert to working the hours he or she previously worked, although this is not to say that an employer will automatically reject a subsequent request to do so.

Clearly, making a permanent change to one’s contract of employment is a big step, and not to be entered into lightly.  Employees who are concerned about this should consider suggesting that a trial period or a limited period of working flexibly might be appropriate.  Employees should discuss these possibilities with their employer when they meet to discuss the application (see Considering an application).

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Points to bear in mind when making an application

The box below provides suggestions for employees of things to bear in mind when making an application.

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Considering an application

Employers have a legal duty to consider all applications and establish whether the desired work pattern can be accommodated within the needs of the business.  Employers should consider each application objectively on this basis, and not attempt to judge whether one applicant’s need for flexible working is greater than another’s.

It may be possible for an employer to agree to a request to work flexibly simply on the basis of the application itself and if so he should write to the employee within 28 days, specifying the contract variation agreed to and the start date.  But, where this is not possible, there is a set procedure to be followed. 

This section explains the first step in the process, which is to arrange a meeting to discuss the request with the employee.

Summary

The meeting

• An employer must hold a meeting to consider the request within 28 days after the date an application is received.
• An employee can, if they wish, have another worker employed by the same employer to accompany them to the meeting.
• The employer must write to the employee informing them of their decision within 14 days after the date of the meeting.

The companion

• An employee has the right to bring a companion to the meeting.
• The companion must be a worker employed by the same employer, but not necessarily working at the same premises, and he or she can be the workplace trade union representative.
• The companion can address the meeting or confer with the employee during it, but  is not allowed to answer questions on the employee’s behalf.
• If the companion is unable to attend the meeting, the employee should re-arrange the meeting for a date within seven days of the originally proposed time, ensuring the new time is convenient to all parties; or, consider an alternative companion.

How should an application be submitted and received?

An application will be considered to have been made on the day that it was received by the employer. For applications sent by e-mail or fax this is taken to be the day of transmission. For applications sent by post it means the day on which it would have been delivered in the ordinary course of post, unless shown to be otherwise.

How should an application be acknowledged?

It is best practice for the employer to acknowledge receipt of the request. An acknowledgement slip is included on the bottom of Form FW(A).  This allows an employer to readily confirm the date on which the application was made. This is particularly important if there has been a delay in the application reaching the employer.

What happens if the application is incomplete?

If an employee fails to provide all the required information as set out in Making an application, the employer should inform the employee what they have omitted and ask them to re-submit the application when complete. The employer should also inform the employee that they are not obliged to consider the application until it is complete and re-submitted.

If the employee unreasonably refuses to provide the employer with the information needed to assess whether the change should be agreed to, for example he or she has not described the desired future working pattern, the employer will be entitled to treat the application as withdrawn.  The employee would not then be able to make another application under the statutory procedure for a further 12 months.  It is therefore important for the employee to provide any appropriate information if requested.

Why hold a meeting and what happens?

Experience shows that the best way for both parties to understand each other’s

position and identify a solution that suits them both is to hold a face-to-face meeting to discuss the request. Thus, the legislation requires the employer to arrange a meeting with the employee within 28 days after the application has been made. The meeting will provide both parties with the opportunity to discuss the desired work pattern in depth and consider how it might be accommodated. Both the employer and the employee should themselves be prepared to be flexible.

If the requested working pattern cannot be accommodated, the meeting also provides an opportunity to see if an alternative working arrangement may be appropriate. It may also be in the employer and employee’s interests to agree at this stage that the new working pattern will take place for an agreed trial period for, say, 12 weeks in order to see how it would suit them both.

In this case, the parties could agree to extend the time for a final decision to be given by the employer until the end of the trial period.  To do so the employer should specify the period of extension and its end date in writing (dated) to the employee.  The employer’s final decision can then be given once they have tried out the new pattern (see  section on Exceptions to the procedure and withdrawals).

In some circumstances, the employer and employee may conclude that a permanent change to the latter’s contract of employment is not the best solution: this might be the case, for example, where an employee is going to be caring for an adult who has a terminal illness or a fluctuating condition.  A solution here might be an informal agreement between employer and employee – outside the legislative framework - to flexible working for a limited period.  Other solutions might be found in other arrangements such as Time Off For Dependants http://www.dti.gov.uk/employment/workandfamilies/time-off/index.html or employer-specific schemes.

However informal the arrangement is, it is advisable to have it agreed in writing so that both employee and employer are clear about start and end dates, etc.

Alternatively, the employee and employer might agree under the formal procedure to a time-limited change after which the employee would revert back to the original working pattern.  In this case, the employee would then have no right to make another request within a year or to complain to a tribunal if he or she subsequently wanted the change to be made permanent.

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How to ensure you get the most from the meeting

The employer must ensure that the meeting is held at an appropriate time and place that is convenient to both parties. In most cases, this will probably be the usual place of work, but again, both parties should be prepared to be flexible about this. For example, if the employee is a mother who is about to return to work from maternity leave, it may be that she will find it difficult to travel to her workplace.  In such circumstances, discuss the meeting place with her and consider whether there is an easier place to meet.

If it is difficult to arrange a meeting within 28 days after the application was made at a time and place convenient to all parties then the employer should seek the employee’s agreement to extend the period. This is explained in detail in Exceptions to the procedure and withdrawals.  Failure to hold a meeting within the 28-day period or any extension, without the employee’s agreement, will be a breach of the procedure (see Unresolved applications for more detail).

Can an employee bring a companion to the meeting?

The right allows an employee to be accompanied at the meeting by one companion if they feel this would help them. The companion must be a worker employed by the same employer. This can include a colleague or a trade union representative who works at any other premises which forms part of the business.

The role of the companion is to support the employee.  The companion is able to address the meeting, and to confer with the employee during it, but may not answer questions for the employee.

The employee should contact their companion as soon as they know the date of

the meeting to ensure they are free. If the companion is unable to attend the initial meeting, the employee must seek to rearrange the meeting for a time convenient to themselves, the employer and their companion. It should take place within seven days of the date of the initially proposed meeting. If this cannot be achieved, the employee should consider an alternative companion who can attend the meeting.

An employer must allow any of their workers to take time off during work hours to act as a companion. The employer must also continue to pay them for this time.

What happens if the employee fails to attend this meeting?

An employee who fails to attend the meeting without notification should contact the employer as soon as possible to explain their absence, and to allow the employer to rearrange the meeting at the next mutually convenient time. An employer whose employee fails to attend the meeting more than once and does not provide a reasonable explanation may treat the application as having been withdrawn. In such circumstances, the employer should write to the employee confirming that the application is now considered withdrawn. For further information about when an application may be taken as withdrawn see Exceptions to the procedure and withdrawals

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