Extension of the Right to Request Flexible Working Arrangements- The New Rules

From the 6^th April 2009 the right to request flexible working arrangements has been extended to employees that have children under 17 years old. The Government has estimated that an additional 4 and a half million employees will benefit from the extension of this right, and that some 300,000 employees will apply for flexible working arrangements each year.

Prior to April this year, the right to request flexible working arrangements had been restricted to employees with children under the age of 6 (or 18 in the case of disabled children) and employees that are carers of dependent adults.

There are a number of conditions to be met before an employee can become entitled to exercise this right. Firstly the employee must have been employed by his or her employer for at least 26 weeks, and secondly the employee must have (or expect to have) responsibility for the applicable child. The spouse, civil partner, or partner of the child’s biological or adoptive parent is also covered by the regulations if he or she shares the responsibility for caring for the child.

The right given to employees under the regulations is often misconstrued as a right to insist on flexible working arrangements. The right is to request flexible working arrangements as a permanent change to the employee’s terms of employment.

As long as the employee meets the eligibility requirements and puts the request in the correct form, an employer is obliged to consider the request that has been made, but may reject it for one or more permitted reasons.

The procedure is instigated by the employee making a written request. The request must:-

1. state that it is being made under the statutory flexible working arrangements (rather oddly!),

2. specify the working arrangements that the employee wants (egs, part-time hours, changing the hours of work, working from home),

3. explain how the request will affect the employer, and

4. specify how the individual meets the eligibility criteria.

Once the correct form of request has been made, the employer is obliged to follow a set procedure is dealing with the request.

There are limits placed on the employee, who can only make one request for flexible working arrangements per year. 

Set grounds for rejecting an application are available. In any event, if a request is rejected the employer must give a “sufficient explanation” of the grounds of rejection and how they apply to the particular request.

The Employment Tribunals have limited powers to deal with claims arising from the operation of these Regulations. The Tribunal can give a ruling that an employer has failed to carry out the correct procedure in dealing with the request, that the request has been rejected on grounds that are not permitted under the Regulations, or that the employer based a decision  to reject the request on incorrect facts.

In the current economic situation we think it is unlikely that as many employees as predicted by the Government will apply for flexible working arrangements. However, employers must ensure that have and implement the correct procedures in dealing with flexible working arrangements.

It is essential that employers remain aware that the Sex Discrimination Act can be used by employees seeking flexible working arrangements, typically for a return to work on part-time hours instead of full- time hours. That legislation requires a different, more thorough, approach to any such request, and does NOT include any set grounds on which to reject such a request. For more information see our Free Factsheet on Flexible Working arrangements.

If you require further information or advice on any of the matters raised in this article, please do not hesitate to contact us.