Factsheet: Flexible Working

April 2006

This factsheet deals with flexible working including working out what is right for you, the law, negotiating with your employer and what you can do if you cannot reach an agreement with your employer. Our factsheet Changes to your Contract deals with the situation where your employer, not you, is making the changes.

Types of flexible working

Below are some common types of flexible working, however flexible working is not limited to these types and could combine several different styles of working. For example you could be a part time worker, working flexitime, with some time spent working at home.

Part time working

Part time working simply means working fewer hours than the standard working week. The law states that part time workers must not be treated less favourably just because they are part time, e.g they cannot be excluded from pension schemes or paid a lower hourly rate. Note that although there is no legal definition of part time work, benefits and tax credits do have minimum and maximum hours.

Flexi - time

Flexi time allows you to vary your hours, although there is usually a "core" time where you have to work, and an expected number of working hours a day. For example if the core time is 10 am - 4 pm you could work 8 am - 4 pm, 9 am - 5 pm or 10 am - 6 pm. If you worked 8 am - 6 pm one day you could bank the extra two hours and work 2 hours less another day. Many schemes allow you to bank hours over a long period and take whole or half days off.

Job - sharing

Job - sharing is where a job is split, usually between 2 people. For example one person might do mornings and another afternoons or one could do Mondays and Tuesdays and the other Wednesdays, Thursdays and Fridays. Sometimes there is a period when both job - sharers are in the office to liaise and handover.

Term - Time working

This allows you to work full or part time during the school term only while taking unpaid leave in the holidays. Your pay may be averaged out over the year.

School hours working

Where you work school hours only so you can drop the children off and pick them up.

Compressed hours

You work more hours a day but fewer days a week.

V-Time

This means a voluntary reduction in hours, maybe for an agreed period of time.

Working from home

Also called teleworking or remote working. You can work all or part of the week at home. Working from home is not a substitute for childcare for young children, although it can still be useful as it cuts down on commuting time. Your employer is still responsible for your health and safety when working at home so can insist that you have the correct equipment and childcare in place.

Our factsheet Working Reduced Hours has more information on the types of flexible working

What is right for you?

Before you decide which pattern of working is best for you, think about how it will affect your finances and career. If you reduce your hours will you still have enough income to live off? How will it affect your travelling and childcare costs? Do you need to fit around a partner's shifts or fit in with childcare? Do you need the change to be permanent or is it just for a few months? If you need some help working this out, call our helpline on 0800 013 0313 or look at our online guide to flexible working at www.workingfamilies.org.uk.

As well as this you need to consider what is possible in your job. Do you need to be available at certain times? Do you need to be physically present at your place of work to do your job or could part of it be done from home?

You also need to think about the effect it will have on your employer. A request under the right to request flexible working must state what effect the working pattern will have and how you can avoid it having a negative effect on the business. It is also good to be ready to point out how it will help your employer, for example doing some work from home would free up desk space/ allow you to work on more involved projects concentrate without distraction etc.

The law

Although there is no absolute right to work part time there are two pieces of legislation which can help you to get flexible working. The Employment Rights Act 2002 introduced the right to request flexible working procedure in April 2003. It gives certain employees the right to ask to work flexibly and employers the duty to consider this seriously. The right to request is available to both men and women, and covers the hours an employee works, the times s/he is required to work and the place of work. It is important to understand that a change granted under the right to request is permanent- if you want a temporary change only this must be specifically negotiated with your employer.

The Sex Discrimination Act 1975 is the second relevant piece of legislation. This Act prohibits both direct and indirect sex discrimination. Women have successfully argued that making them work full time without justification is indirect sex discrimination, because they are more likely than men to have childcare responsibilities. Direct discrimination is when an employer treats the sexes differently, for instance by allowing female staff to work flexibly but not male workers. These rights are set out in more detail below.

In addition, you should always check to see if your contract of employment and/or company policy allow you to work flexibly. If they do, then you ought to point this out to your employer when making your request. If there is a right to work flexibly in your contract or in the company policy, and you are not allowed to work flexibly, then in addition to the rights below, you may be able to claim your employer is in breach of contract.

Right to request

In order to qualify for the new right you must:

1. Have a child under 6 years old, or under 18 years old if the child receives Disability Living Allowance
2. Make the request no later than two weeks before the child's 6th (or 18th) birthday
3. Be responsible for the child and the reason for the request must be for you to care for the child
4. Have worked for your employer for at least 26 weeks when you make the request
5. You cannot be an agency worker or a member of the armed forces
6. You cannot have made an another application under the same right during the previous year

Your request must contain the following to be covered by the legislation:

• Be in writing and dated. This includes e mails and faxes
• State that it is an application under the statutory right to request flexible working
• Confirm that you have responsibility for the upbringing of the child and state your relationship to the child.
• Explain what, if any, effect the change would have on your employer and how this could be dealt with.
• State what working pattern you are applying for
• State what date you want the change to start
• State whether you have made an application before and if so when (you can only make one application a year)

The easiest way of making the request is to use a standard form which you can get from the Department of Trade and Industry website www.dti.gov.uk/er/flexible.htm. However, you do not have to use this form and some companies have their own versions.

Your employer must arrange a meeting with you to discuss your request within 28 days of receiving your request, although this time limit can be extended either if you agree to an extension or if the person who has to make the decision is away on leave or is ill. You have the right to be accompanied to the meeting by a worker employed by the same employer (this can be a trade union representative as long as they work for your employer too).

Fourteen days after the meeting your employer must give you a decision in writing. S/he may grant your request; refuse to grant your request but permit an agreed compromise; or refuse your request altogether.

A request can only be refused on one or more of the permitted reasons. These are:

• 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 you propose to work
• Planned structural changes.

As well as stating one of the permitted reasons, your employer should explain how they think the reason applies to your circumstances. So, they cannot just say “I reject your request because of the burden of additional costs “ they must follow that up with some more detail on how it applies to your particular request. If your employer does not give you reasons in writing or does not explain them, you should ask him/her to. Knowing the reasons you have been turned down for will help you to appeal, if you want to.

You have 14 days from being given the written reasons to appeal the decision. If you do appeal your employer must organise another meeting 14 days after you have made your appeal in writing. You can appeal on any grounds. For example, your employer may not have taken something into account when he/she made the decision or you may want to challenge the business reason s/he has given you.

14 days after the appeal meeting your employer must tell you whether or not your appeal was upheld. Again, this must be in writing and must give reasons. If your appeal is not upheld and you want to take matters further, you should raise a grievance (see below).

An Employment Tribunal complaint under the right to request only can only be made on certain grounds. These are:

• The employer has not followed the procedure
• The employer has refused the application for a reason not specified in the Employment Relations Act (see above)
• The employer's decision to refuse was based on incorrect facts

Note that you cannot make a complaint because you disagree with the reason stated by your employer. This is not true of sex discrimination (see below).

The compensation which can be awarded is a maximum of 8 weeks' wages. A week's wages is currently capped at £290, so the maximum award is £2320. The employer can also be ordered to reconsider it's decision but the Tribunal cannot order the employer to grant the request. Compensation for claims brought under the Sex Discrimination Act can be much higher than this so you should see if you also have a sex discrimination claim (see below).

Indirect Sex Discrimination

It has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination.

In law, indirect discrimination occurs when:

• Your employer requires something of, or imposes a working practice on male and female employees, for example full-time working or shift working, which in practice fewer women than men can do, and
• You are a woman and the requirement or practice is harmful to you personally - for example you cannot work full-time or work the shifts because of childcare responsibilities, and
• You suffer a disadvantage as a result of not being able to meet the requirement or practice. The disadvantage may be that you are forced to leave your job or that you suffer stress and exhaustion by continuing to work your former hours

And,

• the requirement or practice cannot be justified by your employer as genuinely necessary for the business.
• Unlike the right to request there is no definitive list of genuine business reasons. Tribunals look at the individual circumstances of each case.

Successful Cases

A branch manager for a large off license chain had a contract that required her to work hours over and above her basic working week where necessary. After having a baby she asked to work fixed hours so that she could make childcare arrangements but her request was refused. The company argued that, because of the senior nature of her job, it was not possible to agree to her request. The tribunal said that the company had not considered the matter with an open mind and that their refusal was not justifiable. She won her case.

Another case involved a lone parent who worked as an executive officer for a government department. She asked to work part-time on her return from maternity leave but was refused. Her employer argued that allowing part-time working would increase their National Insurance contributions and administration costs, that more office accommodation and equipment would be needed and that there would be problems of continuity and supervision of staff. The tribunal said that the department could accommodate part-time working and that its refusal to do so was unlawful sex discrimination. The fact that the department employed 250 people at the applicants' level was a factor in the decision. In another case in which an employee made a similar request but worked in an office employing only three people the tribunal accepted the employer's refusal as justified.

A shop manager who worked 9am-6pm asked to change her hours in order to enable her to collect her daughter from nursery at 6pm, a journey of one hour from work. Her employer refused and dismissed her because she was unable to work her original hours. The employment tribunal found that she had been indirectly discriminated against and unfairly dismissed.

In another case it was accepted by the tribunal that a work arrangement which meant that a mother had to leave her child with a minder for most of his waking hours was not acceptable. It was held that the mother had been indirectly discriminated against because of the requirement to work these hours.

Unsuccessful Cases

A health visitor, wanted to switch to part-time working on her return from maternity leave. She wanted to work two or three days a week. Her employer agreed to reduce her hours but insisted that she work them over a five day week in order to maintain continuity for her patients. The employment tribunal said the employer's requirements were reasonable.

Another mother initially said she could work full-time as both sets of parents lived nearby. She later requested part-time work but was refused and took her employer to an employment tribunal. The tribunal held that she could comply with the requirement to work full-time.

A senior sales assistant in a chemicals company was turned down when she asked to move to part-time hours on her return from maternity leave. The employment tribunal found that her employer was justified in refusing the request because, although parts of the job could be done part time, an element of the job involved fairly extensive travel with the product manager. The tribunal said that this aspect of the job meant the employer was justified in requiring a full-time employee.

The Equal Opportunities Commission's website for advisers has guidance and case law, see www.eoc-law.org.uk

Direct Sex Discrimination

If a woman would be offered a flexible working pattern it would be direct sex discrimination to not offer a man in the same situation that working pattern. The reverse is also true, that is, if only men are allowed to work flexibly a woman would have a direct sex discrimination case.

Rights of part timers

The Part time Workers Regulations 2000 give part-timers the right not to be treated less favourably than full-timers, unless such treatment can be justified on objective grounds. For example a part-timer must not be paid less than a full-timer pro rata, or be excluded from a pension scheme or from training. If you change from working full-time to part-time, you must not be treated less favourably than when you were full-time. However, it is important to note that the Regulations do not require an employer to allow flexible working.

Negotiation

Although the law may be able to help you in relation to flexible working it is obviously better to try to reach a negotiated agreement with your employer.

It is important to be careful about how and when you approach your employer in case you cannot reach agreement and decide to take matters to an employment tribunal. With this in mind it is useful to take advice before approaching your employer, to make a note of all conversations with them and to put things in writing wherever possible. Try to suggest solutions to any of the problems they might raise. Gather information about people who do similar jobs to yours on a flexible basis. You need to think carefully about your situation and try to put forward the best proposal you can of how your new arrangement would work.

You should look at your contract of employment to see if there are any provisions that allow for flexible working. You could also contact your human resources department to ask what your employer's policy is on flexible working and whether any other employees are working part-time.

If it is part of your company's policy or contract to allow you to work flexibly or if other employees are allowed to work part-time then you should point this out when you make your request.

If you are having difficulty getting your employer to agree to your request you may also wish to consider requesting a trial period of flexible working. It can be more difficult for an employer to refuse a short-term arrangement.

Even if your case appears very strong you will still lose if your employer can show that it is essential for the job to be done in a particular way. However many of the reasons employers have given for refusing flexible working have not been considered justifiable by employment tribunals (see the cases above for examples).

Taking Matters further

If you are refused flexible working, treated less favourably because you have asked to work flexibly or if your employer is insisting you change your working pattern, and you want to take matters further, you will need to raise a formal grievance with your employer. Under legislation recently introduced you may not make most claims in the Employment Tribunal (and you may face a financial penalty if a case reaches the Tribunal) if you have not beforehand raised a formal grievance and waited 28 days. The legislation says that, in most cases, and at the minimum, you must put the reasons for the grievance in writing to your employer, you must meet and discuss the complaint if your employer arranges a meeting and you must appeal your employer's subsequent decision if you are not satisfied with it. You should use your employer's grievance procedure, if there is one, provided that it is similar to the minimum process described above. Further information on the new legislation is available at www.dti.gov.uk/resolvingdisputes.

If you are dismissed because you have requested flexible working then you should appeal against your dismissal using your employer's disciplinary procedure. If you cannot appeal because your employer has not used a disciplinary procedure or the appeal is unsuccessful you can bring a tribunal claim.

Normally, you must make your claim to the Tribunal within 3 months less one day from the date that you were refused flexible work, treated less favourably or dismissed. This deadline is extended by three months in some cases if you make a written grievance within the normal time limit for making a claim. However, an extension of the deadline cannot be obtained for all types of claims- therefore the safest course of action is to raise your grievance within 2 months of the event you wish to complain about, wait 28 days then submit your Employment Tribunal claim within 3 months of the event in question.

Before making a claim we advise that you seek the advice of a solicitor or your trade union. If you are not a member of a union you will usually have to fund the case yourself. You may have cover for legal costs as part of your home insurance or you may be able to find a solicitor who works on a "no win, no fee basis".

Tribunals do not normally make one side pay the other's costs. However they can do this where a claim never had any chance of succeeding or where bringing a claim was "vexatious". One reason it is important to have a qualified legal representative is that they will be able to advise on this.

Useful contacts

Working Families

1-3 Berry St, London, EC1V 0AA

Telephone: 0800 013 0313

Waving not drowning project for parents of disabled children: Janet on 020 7253 7243

www.workingfamilies.org.uk
info@workingfamilies.org.uk
Registered Charity No 1099808
Company No 4727690

Equal Opportunities Commission
offers advice and publications on sex discrimination and how to bring your case to an employment tribunal.
Advice line: 0845 601 5901
Email: info@eoc.org.uk or
visit the website at www.eoc.org.uk

Citizens Advice Bureau
You can find out where your nearest Citizens Advice Bureau is through the National Association of Citizens Advice Bureaux www.nacab.org.uk. Advice from the CAB is available at www.adviceguide.org.uk

ACAS

Free advice line giving employment law advice
Telephone: 0845 747 47 47
www.acas.org.uk

Community Legal Service (Directory)

For finding a solicitor with the CLS quality mark in your area
Telephone: 0845 608 11 22
www.justask.org.uk

Employment Tribunal Enquiry Line

Telephone orderline: 0845 795 9775
www.ets.gov.uk

Law Centres Federation

To find out if there is a free legal advice centre in your area
0207 387 8570
www.lawcentres.org.uk

The advice given in this factsheet is accurate at April 2006. It may not be accurate after that date.

Working Families operates a complaints procedure to ensure any complaints are dealt with thoroughly and fairly. If you would like to have details of the procedure or to make a complaint please contact the Chief Executive at Working Families.

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