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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for
general information only, is based on |
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Question: |
What is the Right to
Work Flexibly? |
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Answer: |
Most people with children under the age of sixteen (or
eighteen if the child is disabled) six have the statutory right to ask to
work flexibly under the Flexible Working Regulations. I’m not going to go
through the regulations in detail but in summary: It’s important to remember that flexible working does not
just mean working part time, and can include: ·
Working
part time ·
Job
share ·
Working
from home ·
Working
from home some of the time ·
Varying
the working hours (ie start later and finish later) ·
Annualised
hours ·
Unpaid
leave during school holidays Under the Flexible Working Regs, staff that qualify must
be: ·
Be
an employee ·
Have
a child under six, or under eighteen where disabled (ie a child entitled to a disability living
allowance as per s71 of the Social Security Contributions and Benefits Act
1992) ·
Make
the request no later than two weeks before the child's appropriate birthday ·
Have
the responsibility for the upbringing of the child (whether or not the
primary carer. ·
Make
the application to enable you to care for the child ·
Be
either the mother father, adopter, guardian or foster parent of the child, or ·
Married
to or the partner of the child's mother, father, adopter, guardian or foster
parent. ('Partner' means a person, whether of the same or a different sex who
lives with the mother, father … in an enduring family relationship but is not
a relative) ·
Have
worked for us continuously for at least 26 weeks ·
Not
be an agency worker ·
Not
have made another application to work flexibly under the right during the past
12 months. One of the interesting things about the regs is that the
employee has to explain how s/he thinks that the flexible working arrangement
will pan out in practice. In other words if the employee does not think
through the practical aspects of the change him or herself, the employer can
hardly be criticised for not agreeing it’s practical. If agreed, the change will be a permanent change to the
employee’s contract of employment, though the employee and employer can agree
to a trial period to see how it works out and before deciding whether or not
to make it permanent. However if the employer rejects the
request under the Flexible Working Regs
the decision must be for one of the following business grounds: ·
Burden of additional costs ·
Detrimental effect on ability to meet customer demand ·
Inability to reorganise work amongst other 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 There’s a major overlap with the right of women to ask to
work part time on their return from maternity leave. For example in Hardy and
Hansons plc v Lax (2005) Times 26 July, Ms Hardy claimed indirect discrimination
in these circumstances and was awarded compensation of £60,000. Indirect sex discrimination, in the sense of a disparate
effect on women with child responsibilities (as opposed to men), was admitted
and so the case revolved wholly around the question whether the employers had
demonstrated objectively justifiable discrimination. The Court of
Appeal said no. The employers argued that a tribunal should give an employer
a ‘margin of discretion’ for employers considering a request but the Court of
Appeal held that there is no such requirement. The employer has to show that
the proposal is justifiable irrespective of the sex of the person to whom it
is applied. The employer had to show that the proposal, in this case
for a full-time appointment, was justified objectively even though on the
face of it it was indirectly discriminatory. However under the principle of
proportionality the tribunal to take into account the reasonable needs of the
business. The Tribunal has to make its own judgment, upon a fair and detailed
analysis of the working practices and business considerations involved, as to
whether the proposal is reasonably necessary. In other words, if the employer has received a request to
work flexibly (or a request to work part time on return from maternity
leave), it is essential to: ·
Carefully
follow the procedure laid down by the Flexible Working Regulations, including
getting the employee to explain how it will all work out in practice.. ·
Demonstrate
that sufficient investigation has been carried out before reaching a decision ·
As
far as possible make the decision on objectively verifiable facts. ·
Create
a paper trail to demonstrate what investigation has been carried out. See
also the following page on women wanting to return from maternity on a part
time basis. |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated by
the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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