The law on flexible working

1.1 There are a number of working practices that involve changes to the hours and times worked:

• A flexitime arrangement requires employees to be at work during a specified core period, but lets them otherwise arrange their hours to suit themselves.
• With compressed hours, employees work the same hours over fewer days.
• With annual hours contracts, employers and employees agree they will work a given number of hours during the year, but the pattern of work can vary from week to week.
• Staggered hours contracts let employees start and finish work at different times.
• Employees may also wish to take time off in lieu, unpaid sabbaticals or career breaks.
• You may be asked to consider time off for eligible employees to undertake training.

1.2 Employees may request a job-sharing arrangement.

• This is where one job is shared between two people, who might work alternate days, half weeks, or alternate weeks, or one person working in the morning and one in the afternoon.

1.3 Shift work, part-time and term-time work also count as flexible work, in that they involve variations to the normal pattern of working hours.

1.4 Flexible working may also involve changes in the location of the workplace, such as working from home.

• Employees may request to do some or all of their work from home. You will need to consider your health and safety obligations (see 4.3).

2.1 The employee must:

• Be the mother, father, adopter, guardian or foster parent of the child in question.
• Be the spouse, partner, civil partner or relative, or live at the same address.
• Have responsibility, or expect to have responsibility, for bringing up or caring for the adult or child.
• Make the application as a means of enabling them to care for the child.
• Have worked for you continuously for at least 26 weeks before making the application.
• Have made no other application in the preceding 12 months.
• Be willing to agree a change in their working pattern, with a corresponding drop in pay if necessary.

  You can agree that it should only be a temporary or transitional change.

2.2 If the employee is requesting flexible working in order to look after a child, the child must be 16 or under, or under 18 in the case of a child with disabilities.

The Government plans to extend the right to request flexible working to all employees with at least 26 weeks' service. This will not come into force until April 2014 at the earliest.

3.1 It is up to the employee to prepare a detailed application well in advance of when they want to change their working pattern.

• The application must be in writing and clearly state what the application is for and when it will be effective from.
• The employee should be able to come up with a clear plan of how the new pattern would work and must show that the changes will not harm your business.
• It must also explain how the employee feels he or she meets the relationship criteria.

3.2 It is good practice to acknowledge an application to work flexibly in writing. Once you have received an application from an employee you must:

• Arrange a meeting with the employee within 28 days of receiving it.

  This is to decide a start date (if you agree), or to consider alternatives (if you do not).

  The employee has the right to be accompanied at the meeting. The companion must be a worker also employed by you.

• If you agree, write to the employee within 14 days of the meeting detailing the new working pattern and confirming the start date.
• If you do not agree, you must write to the employee within 14 days with business reasons why the proposed arrangement will not work.

  You must date your refusal and set out your appeals procedure.

3.3 You can refuse an application to work flexibly only if there is a clear business reason.

Valid reasons as set out in the legislation are:

• The burden of additional costs.
• A detrimental effect on the ability to meet customer demand.
• An inability to reorganise work among other employees.
• An inability to recruit additional employees.
• A detrimental effect on quality.
• A detrimental effect on performance.
• Insufficient work when the employee proposes to work.
• Planned structural changes.

3.4 If you refuse an application to work flexibly, the employee may appeal.

• They must write to do so within 14 days of you sending your letter of refusal.
• You must have another meeting within 14 days of receiving this letter to hear the appeal.

  You must write, accepting or refusing the appeal, within 14 days of this meeting.

3.5 If you still refuse the application, and the employee feels that their application has not been considered seriously, they may want to take further steps.

• Try to deal with the problem internally at this stage. An informal discussion between you and the employee may clear up any misunderstandings.

  Or, encourage them to use a formal grievance procedure. It will also be much quicker than involving external parties.

• If it is still not possible to resolve the dispute, the employee may decide to involve an external third party.

  This might be someone from Acas or some other mediator or conciliator.

  They will try to resolve the problem in an informal manner by mediating discussions between you and the employee.

3.6 In some circumstances, the employee may decide to make a formal complaint to an employment tribunal or to the Acas arbitration scheme.

• The employee can only do this if you have failed to follow the correct procedures, if your decision was based on incorrect facts, or, perhaps, if the employee is caring for a disabled relative, and the employee claims the refusal amounts to disability discrimination.
• If it is shown that you have not followed the correct procedure, you will have to reconsider the application.
• You may also have to pay compensation to the employee.

  The amount payable will be decided by the employment tribunal or the Acas arbitrator and will be limited to a maximum of eight weeks' pay. Each week's pay is currently limited to £450. If a discrimination claim succeeds, compensation is not capped.

3.7 The timescales may be extended by mutual (written) agreement. If the employee fails to attend two or more meetings (without giving a reasonable explanation) then the employer may treat the application as withdrawn.

4.1 You will need to amend the employee's contract of employment to reflect the changes.

• You may want to agree a trial period to ensure the changes are working.

4.2 If the new flexible working arrangement involves changes to the number of hours worked, you will need to amend the employee's pay and holiday entitlement.

4.3 If the employee will be working from home, health and safety requirements will apply just as they do to those who work in the office.

An initial risk assessment must be carried out although this can be done by the employee. Areas to consider are:

• The seating and layout of the employee's computer workstation.
• Electrical equipment. Has it been tested and certified?
• Make sure there are no trailing extension leads.
• Adequate lighting levels, ventilation and room temperature.

You will need to give employees simple, specific health and safety advice and record what has been done.

4.4 Consider the impact of the changes on other employees.

• If an employee will be working fewer hours than previously, make sure you have adequate cover in place. Other employees may become resentful if their workload increases because of the changes.
• You should inform other employees as early as possible.
• You also need to make sure work is allocated fairly. For example, in a job share you need to make sure that both parties have equal responsibilities.

4.5 Make sure you are consistent in your approach to flexible working. Keep records of who has applied to work flexibly, and what your response was. Monitor and evaluate how the new arrangements are working so you can put changes in place if necessary.

5.1 The employee is protected against dismissal or constructive dismissal under the flexible working rights. It is unlawful to dismiss an employee because:

• They have applied to work flexibly and it has been granted.
• They have made or intend to make a complaint to an employment tribunal.
• In such a case, the qualifying period of employment is waived and dismissal will be classed as automatically unfair.

5.2 If you are making employees redundant, make sure this has nothing to do with their right to work flexibly.

• Employees are protected from dismissal on these grounds.

5.3 When implementing flexible working arrangements you will need to make sure you are not discriminating against the employees concerned.

• Fixed term and part-time employees are legally entitled to be treated 'no less favourably' than their permanent, full-time colleagues.

  If the employee is caring for a disabled relative, the refusal may amount to disability discrimination. There is no ceiling on the amount of compensation that can be awarded in such cases.

5.4 People who work on annual hours or term-time contracts are protected by the working time and minimum wage regulations, just like full-time employees.

6.1 Acas has a good guide to forms of flexible working, plus an advice leaflet and various forms on its website at www.acas.org.uk or for further advice call 08457 47 47 47.

6.2 Visit www.gov.uk/flexible-working for an interactive guide to flexible working rights.