Staff Matters

On April 6, 2009 the right was extended further to parents with children aged 16 or under. The aim of the legislation is to allow employees to request changes to their contracts in relation to hours, location and pattern of work to enable them to care for a child or an adult, but it must be noted that there is no automatic right to these changes.

This last change was the topic of some controversial debate among MPs and trade unions when it was introduced to Parliament. Indeed, an estimated 4.5 million adults could potentially now have the statutory right to ask their employers for flexible working.

The question is, will this really affect employers as some envisaged? In a YouGov survey commissioned by Croner of 2,114 adults between March 20 and March 23, 2009, nearly two-thirds (61 per cent) of employees who were parents of children aged 16 or under said they would not be taking advantage of new flexible working legislation. A further 22 per cent were unsure and only 17 per cent said that they would be making a request.

Happy with arrangements

When questioned why they would not be making a request, half said that they were happy with their current arrangements, with a further 20 per cent answering that working flexibly was not practical. Six per cent were concerned about the financial implications and five per cent said they preferred not to ask in the current climate.

Despite the effort that has gone into making it easier for parents to have the opportunity to work flexibly, many parents will not be taking advantage of changes to the law, as they are already happy with their current arrangements.

As an employer, do I have to agree to changes?

The short answer is no. If there is a business reason why a flexible working request is not viable, an employer does not have to agree to it. If a request is made, there is a strict statutory procedure of meetings within specific time limits for both employers and employees to follow.

To be eligible to make a request, employees need 26 weeks’ service at the date the application is made, and only one application can be made every 12 months. The employee must make the request to the employer in writing, including details of the desired working pattern, the proposed effective date and how the proposed changes might affect the business.

The employer should hold a meeting with the employee within 28 days, giving him or her the right to be accompanied by a work colleague. The reply, with the employer’s decision, should be given within 14 days and there is also an appeal procedure. Both the employee and the employer can agree to extend the time limits, if necessary. In refusing a claim, employers have to set out, in writing, one or more of the statutory reasons for refusal, which amount to the following:

• 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 employee’s proposed hours.

• Planned structural changes.

These should be backed up by further evidence in a letter to the employee. For example, an employer may show that he or she has attempted to recruit a suitable job-share person and failed, or has statistics that some days or time periods are busier than others.

Following the right procedure, as well as having good evidence for refusal, is important. Employees can claim compensation at an Employment Tribunal if the procedure is not followed and there is also a potential risk of discrimination claims if the employer’s refusal cannot be objectively justified and backed up by evidence. If in doubt, employers should seek advice.