Employment law specialist Jeya Thiruchelvam of Harding Evans Solicitors answers some important questions for employers and employees regarding flexible working.
 

1. I’ve heard that from April all employees will be entitled to make a flexible working request. Is this correct?

No. At the moment only parents with a child under the age of 6 or a disabled child under the age of 18 can request to work flexibly. However, this is set to change on 6th April 2007 when the right will be extended to employees who care for adults as long as that adult is the employee’s partner, near relative, or living at the same address. The term ‘near relative’ is a wide one and will cover adoptive and step relationships as well as in-laws.

Remember all employees still need 26 weeks service before they can make a request, and the law currently allows a maximum of one request per year. The government estimates that the extension of the right to request flexible working will cover around 80% of all carers. Some companies have extended the right to all employees to capitalise on the benefits associated with flexible working, which include a reduction in absenteeism and recruitment costs, and an increase in employee commitment and loyalty.



2. What is a flexible working request?

It is a request by an employee to vary their contract of employment. The proposed variation must relate to the employee’s hours, times or place of work. By way of example, the employee may request to work part-time, start and finish earlier or later, work from home, or work compressed hours i.e. the same number of hours over a shorter period.



3. What happens when the employee’s children have grown up or their care commitments have ceased? Does the employee automatically revert to their original terms and conditions?

No, if an employer grants a flexible working request then the employee is not legally entitled to revert to their original terms and conditions once their care commitments have come to an end. Any reversion would have to be the subject of a further agreement between the employee and their employer. The law does not expect employers to unravel arrangements, which may have been in place for several months or years.



4. Can an employee complain to an Employment Tribunal if an employer refuses a flexible working request?

An employee cannot complain to a Tribunal on the grounds that his/her employer has unreasonably refused a request. However they can complain if the employer has failed to follow the correct procedure upon receiving a request.

An employee may also complain to a Tribunal if the employer has relied on incorrect facts to justify the refusal. When the Tribunal is checking the factual correctness of the explanation it may well investigate what the effects of granting the request would have been. If the employee is successful then they will be awarded up to 8 weeks pay.

An unreasonable refusal may also leave an employer open to an indirect sex discrimination complaint. Such claims are most commonly brought by female employees on the grounds that a requirement that they work full time or are office based puts women, who continue to shoulder the main burden of domestic and child care responsibilities, at a particular disadvantage.

The recent case of Attridge Law v Coleman may also allow employees who are requesting flexible working to care for a disabled person additional protection under the Disability Discrimination Act 1995. The Act currently only prevents discrimination on the grounds of an employee’s own disability but the European Court of Justice is currently deciding whether protection should be extended to employees caring for a disabled person i.e. discrimination on the grounds of someone else’s disability.

This case involved a legal secretary whose request for flexible working to allow her to care for her disabled four-year-old son was refused. Miss Coleman resigned and claimed that she had been treated less favourably than mothers of non-disabled children whose requests had been granted. The compensation payable in discrimination cases is uncapped.



5. On what grounds can an employer refuse to grant a flexible working request?

The grounds are set out in the law and include cost; a detrimental effect on quality, performance, or the ability of the business to meet customer demand; an inability to re-organise work among existing staff or recruit additional staff; insufficiency of work during the periods the employees wants to work and planned structural changes.