New rules on flexible working come into force

From 6 April 2003, working parents in the UK are entitled to request flexible working for childcare reasons and to have their request seriously considered by their employer. This feature highlights the key features of the new legislation and social partner reaction.

On 6 April 2003, new legislation came into force which gives parents of children aged under six or of disabled children aged under 18 the statutory right to request flexible working and to have their request seriously considered by their employer. The government’s aim is to facilitate dialogue between working parents and their employers about working patterns that meet parents’ childcare responsibilities as well as employers’ business needs. The new provisions are based on recommendations made by the Work and Parents Taskforce (UK0107137N and UK0112105N), which included representatives of the Confederation of British Industry (CBI) and the Trades Union Congress (TUC).

Key points of the new legislation

The legislation is contained in the Employment Act 2002 (UK0210103F) and two associated sets of regulations.

The Act provides that parents of children under six years of age (or disabled children up to the age of 18) have the right to apply for changes in their working patterns for childcare purposes. Such changes may relate to:

  • the hours and times the employee works;
  • working at home; and
  • other aspects of the employee’s terms and conditions as specified in regulations by the secretary of state.

According to guidance issued by the Department of Trade and Industry (DTI), the kind of working patterns that can be applied for include annualised hours, compressed hours, flexitime, homeworking, job-sharing, self-rostering, shift working, staggered hours and term-time working.

The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 restrict the entitlement to request flexible working to employees who have worked for the employer for at least 26 weeks and who is either the mother, father, adopter, guardian or foster parent of the child, or the partner or spouse of any of these relatives, and who has responsibility for the upbringing of the child.

The Employment Act provides that employers may refuse requests to work flexibly on one or more of the following grounds:

  • the 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 the periods the employee proposes to work;
  • planned structural changes; and
  • such other grounds as the secretary of state may specify by regulations.

The Flexible Working (Procedural Requirements) Regulations 2002 elaborate on the provisions of the Act by setting out the manner in which employers should deal with employee applications for contract variations. Under the Regulations,

  • employers must either hold a meeting to discuss the application or agree to the contract variation in writing within 28 days of the date of the application;
  • employers must inform the employee of their decision within 14 days following the meeting, and the employee has a further 14 days to appeal;
  • if an appeal is made, employers must hold a meeting to hear the appeal within 14 days, and notify the employee in writing of their decision within 14 days of the hearing; and
  • the employee has the right to be accompanied by a companion at the meeting to discuss the application or the appeal. The companion must be a fellow worker employed by the same employer.

The employee may complain to an employment tribunal where the employer has either failed to comply with the statutory procedure or decides to reject the application based on incorrect facts. The tribunal will not be able to impose a flexible work arrangement, but may order the reconsideration of the application or award compensation. Under the Flexible Working (Eligibility, Complaints and Remedies) Regulations, tribunals may award compensation of up to eight weeks’ pay.

Employer and trade union reaction

The TUC has welcomed the statutory provisions as a significant advance for working parents and has published a new guide on how the legislation will work and how employees might benefit. However, there is some concern among unions and their legal advisers that the new measures lack teeth and that employers will have extensive scope to reject employee requests for flexible working.

Employers’ groups have expressed a range of views. The CBI accepted the 'right to request' compromise reached via the Work and Parents Taskforce, having lobbied strongly against the possible introduction of an unconditional right to work part-time for parents with young children. The CBI says that 'flexibility in working patterns can benefit both employees and business, but the scope for it depends on such factors as production processes and whether employees can substitute for each other.' The CBI also points out that employees with responsibilities of a non-parental nature (eg for an elderly relative or somebody with a disability) may feel aggrieved if they find they are afforded less flexibility than colleagues who are parents.

The Institute of Directors (IoD) has been characteristically forthright in its condemnation of the new legislation. According to Ruth Lea, the IoD’s head of policy: 'The extensions to family friendly policies, including the right for parents to request flexible working patterns, may seem progressive but they will hurt businesses, cause resentment in the workplace and are redolent of discredited 1970s feminist ideology.'

However, Mike Emmott, employee relations adviser at the Chartered Institute of Personnel and Development (CIPD), says that 'given the business benefits to be gained from helping employees take better control of their lives, we think the new law deserves a broad welcome. It should not present serious problems to employers once they have understood what it means ... In fact we would lave liked to see the right extended to all employees - not just those with young children.'

Commentary

The right to request flexible working is one of a range of enhanced rights for working parents which came into force on 6 April. Others include increased statutory maternity pay, increased maternity leave, a new right for fathers to two weeks’ paid paternity leave and similar rights for adoptive parents, but the flexible working provisions have proved to be the most controversial element of the package. The government has been keen to stress the positive impact that a better work-life balance (UK0302103F) can have both for working parents and for their employers. Launching the new legislation, trade and industry secretary Patricia Hewitt argued that: 'Thousands of businesses around the country already recognise that work-life balance policies can improve their business and help their staff . . . Our new legislation is moving with the tide of business and employee opinion and will ensure awareness and take up of flexible working spreads across the UK workforce.' However, employers’ organisations remain largely sceptical of the case for statutory intervention. The acid test of the legislation will be how it works in practice, including: the extent to which working parents seek to invoke their new legal rights; whether employers, particularly small businesses, readily accommodate requests for flexible working; whether it generates a significant level of employment tribunal claims; and how far the ostensibly wide grounds on which employers may legitimately reject employee requests to work flexibly will limit the new legislation’s impact. (Mark Hall, IRRU)

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