Time for employers to get clued up
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By Simon Rice-Birchall Telephone: 0845 498 4978 |
It’s time for employers to get clued up on flexible working. A recent government commissioned report, the Walsh report, has proposed that the right to request to work flexibly be extended to those with parental responsibility for children up to the age of 16 but resisted a suggestion that this right be given to all. The proposed change will make 4.5 million more people eligible to make a request. However, given research which suggests that in most cases, flexible working has a positive, or at worst, neutral impact on individual performance this is not necessarily a cause for concern. The Current Right and Practice Currently an employee with 26 weeks’ service can apply to work flexibly if they have parental responsibility for a child under 6, 18 in the case of a disabled child or are the carer of an adult. An employer must consider the application but can refuse it if it does not meet the statutory criteria or if there is a legitimate business reason. The request can include a change to the number of hours worked, the times worked or the place of work. In practice, though the right to apply to work flexibly only applies to 6 million employees, there are approximately 14 million employees benefiting from a flexible working arrangement and it is clear that employers recognise the benefits of offering this in the interests of staff retention and morale even when they are not obliged. Procedure The statutory procedure for making a request is complex, beginning with the employee submitting a written application setting out the work pattern they would like and why they are entitled to apply. There is then a strict time line for the process and at the end the employee has a right to appeal the employer’s decision. Any new terms that are agreed should be made as a permanent variation to the contract. The employee’s decision on whether to grant the request can be based on business grounds and is a subjective assessment. It is common for the original request to evolve during the process so that the new working pattern eventually introduced will suit both parties. Remedy An employee may only make a complaint to the Employment Tribunal where the employer has failed to deal with a request in accordance with the formal procedure; refused the request for a reason outside one of the 8 prescribed reasons; or has based the decision on incorrect facts. A Tribunal can order an employer to reconsider the request and may award compensation not exceeding eight weeks’ pay or two weeks’ pay in the case of a procedural defect. Disparity between the sexes The Walsh report confirmed that 91% of requests were granted but recorded a disparity between men and women, with 23% of fathers having had requests refused compared with 13% of mothers. Perhaps employers are concerned that women may seek redress under the Sex Discrimination Act but they should be mindful that this is not a right for women alone and if a practice of looking more favourably upon requests from women is identified, men could bring claims of direct sex discrimination. |
