Right to request

Amy Fielding, employment specialist at Vincents Solicitors, on what employers should be aware of when dealing with flexible working requests

On 26 August 2008 the government published further consultation on an extension to the right to request flexible working. Further to this it now intends to extend the right to make these requests to parents with children up to the age of 16 with this being introduced in one step on 1 April 2009.

It’s believed that this extension of working parents’ rights could result in a quarter of a million employees changing their working hours. At this time the proposals are continuing through the government legislative process but it has been confirmed that they intend to issue full guidance in good time to ensure that all businesses will be able to prepare for the change. It’s likely that any future requests will follow the same procedure as the current legislation.

Since April 2003 parents of children who are six and under have had the right to apply for flexible working hours by following a specific procedure. Any parent making such a request must follow the procedure set out below:

• Submitted a request in writing (by letter, email or prescribed application form).
• State that their child is under the prescribed age (6 or under, 16 after the 1 April 2009);
• Specify the change in hours and from what date the change would be effective; and
• Explain what effect the change may have on their work and how this might be dealt with.

However, there are grounds on which an employer can refuse any such application. These are prescribed in current legislation and provide an employer with an extremely wide scope for any refusal. These grounds are as follows:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency to work during the periods the employee proposes to work; 
• planned structural changes

An employer can agree to any such request immediately but they have no obligation to do so. A meeting could be arranged and should be held within 28 days of receipt of the initial application.

Any objections should be made on business grounds and not due to any employee’s personal circumstances. Should any person believe that their request has been unreasonably refused they may have the basis for a tribunal claim and they should seek legal advice immediately.

The proposed amendments to current legislation are likely to cause all employers genuine concern and result in the incorporation of innovative new work patterns to manage such requests.

Employers will need to consider whether earlier starting or later finishing hours may be possible as well as the option for an employee’s hours to be spread over more days than previously. Job sharing, home working or staggered or compressed hours might be an option. Furthermore, whether any request is permanent should also be considered as a parent may only require a change to their hours for a limited period of time.

Managed correctly any change to flexible hours can work to the benefit of both the employer and the employee. This should be highlighted in any requests made by employees. Flexibility towards working parents promotes loyalty, encourages productivity and prevents a high turnover of staff. On the other hand parents feel security from an adaptable employer and can be assured that they will be able to continue to work around the needs of their family.

Amy Fielding is an employment law specialist at Vincents Solicitors