Flexible Friends

The right to flexible working was originally introduced in April 2003 to allow flexible working for parents of children under 6 or under 18 for a disabled child. However, this right proved so successful that the Government decided to extend these rights. From 6th April 2007, the right to request flexible working was extended by the Act for carers of adults.

The Work and Families Act describes a carer as ‘an employee who is or expects to be caring for an adult’ which includes partners, spouses, near relatives (parents,adult child, siblings, uncles, aunts, grandparents and step-relatives) or someone living at the same address as the employee.

To apply for flexible working, an employee must have been employed with the employer for a continuous period of 26 weeks. However, the law only gives the employee the right to make one application per year for flexible working, though an employer may be sympathtic to the request if circumstances have changed and a further application needs to be made.

There is a notable gap in the new legislation: parents and carers of children aged 7 to 18 do not have the statutory right to make a flexible working request, unless their child is disabled. The DTI has confirmed that this exception is intentional. However, given the possibility of discrimination claims arising as a result of being a carer, requests from these employees should still be properly addressed in order to avoid exposure to a claim alleging the request was unreasonably refused.

There is a statutory procedure for dealing with any requests. This includes:

• holding a meeting within 28 days of the employee’s request
• following the meeting, writing to the employee within 14 days to confirm the outcome
• justifying a refusal (if appropriate) on reasonable grounds
• allowing a right of appeal.

Failure to comply with this statutory procedure may enable the employee to pursue a complaint against the employer in an employment tribunal which, if successful, will result in an order to pay up to 8 week’s pay by way of compensation.

Once employers agree to the request for flexible working, the changes will permanently become part of the employee’s employment contract. Flexible working can incorporate a variety of ways of working to aid the employee and their caring responsibilities and the employer. This could mean the employee could ask for:

• flexible starting and finishing times
• compressed working hours
• annualised working hours
• job sharing, or part time working
• home working or tele-working
• term time working.

An employer therefore needs to be aware of these changes so that a request for flexible working can be properly dealt with.

For further information, contact Yeing-Lang Chong on 01225 755621.