Flexible working: New rules

The Employment Act 2002 contains provisions which are designed to promote flexible working for employees. As with much of the Act, the details are contained in Regulations. The Regulations relating to flexible working have now been published in their final form. These new rules come into force from 6 April 2003.

The Regulations set out the procedure to be followed where an employee wishes to alter their working pattern. An employee can make an application to his or her employer for a variation to their contract if he or she has been employed for at least 26 weeks. The employee must be the mother, father, adopter, guardian or foster parent of a child under 6 years of age (18 if the child has a disability) or married to that person and have, or expect to have, responsibility for the upbringing of that child. This application must be in writing and be dated. It can be made by email if the employee chooses.

An employer who receives an application for flexible working should hold a meeting to discuss it within 28 days. If the employer agrees to the application, there is no need to hold a meeting. The employer simply notifies the employee of agreement within the same time period. That notification should specify the contract variation agreed to and the date on which it takes effect.

Where a meeting is held to discuss the application, the employer should notify the employee of the decision within 14 days of the date of the meeting. That notice should be in writing and where the employer agrees to the application, should specify the contract variation agreed to and the date on which this is to take effect. Where an employer refuses an application, and certain grounds are met, the employee should be provided with a sufficient explanation as to why his or her request has been rejected.

The grounds on which an employer can refuse an application are relatively extensive and are set out in the Act itself. They include the burden of additional costs, the detrimental effect on the ability to meet customer demand, inability to recruit additional staff and detrimental impact on quality or performance. However, employers should be aware that if they refuse a variation, they must base their decision on facts which are demonstrably correct.

An employee is entitled to appeal against the employer’s decision within 14 days of receiving the employer’s rejection. A notice of appeal should be dated and in writing and should set out the grounds of appeal. Within 14 days, the employer should hold a further meeting with the employee to discuss the appeal. The employee should be notified of the decision within 14 days of the meeting. Again, the same particulars should be included in this notice as are included in the employer’s original decision. Where a meeting is held in accordance with these procedures, the time and place should be convenient to both the employer and the employee.

In certain circumstances the employer and employee can agree to an extension of any of the time periods set out in the Regulations. The employee is entitled to be accompanied at these meetings by a person of their choice. Whilst the companion is entitled to address the meeting and confer with the employee during it, he or she must not answer questions on behalf of the employee.

If an employer fails to comply with the Regulations, the affected employee can present a complaint to an employment tribunal. The time limit for doing so is within three months of the non-compliance. Awards of compensation under the Regulations vary from between two weeks to eight weeks’ pay. Employees are also protected from suffering any detriment or being dismissed for exercising their rights under the legislation.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.