Questions and Answers

Q: Could you please point me in the direction of some information which will help me put forward a case for Home Working to my employer.

A: Please click here and you will be directed to the Business Gateway website. This article outlines the pros and cons of working from home and will give you and your employer an idea of the issues surrounding home working. There is help out there for employers who are interested in home working but don't know how to design and implement flexible working policies. See our employer section for further information regarding our flexible working consultancy service.

Q: Do employees have the automatic right to change to a more flexible working pattern?

A: Eligible employees have the legal right to apply to their employer for a more flexible pattern of working hours or for more flexible working arrangementsThe employer is duty bound to follow a set procedure and timetable in relation to any such application, and to give specific business reasons for doing so if it is unable to accommodate the employee's request for flexible working. However, employees do not have the automatic right to change to a more flexible working pattern.

Q: Which employees are eligible for the statutory right to request flexible working?

A: To be eligible to request flexible working an employee must be the parent, adoptive parent, foster parent, guardian or special guardian of a child under the age of 17 (18 in the case of a disabled child), or the spouse, civil partner or live-in partner of such a person, and have, or expect to have, responsibility for the child. The right is also available to employees who care for, or expect to care for, an adult aged 18 or over who is their spouse, civil partner or live-in partner, a relative, or someone living at the same address as the employee. The purpose in making the application must be to enable the employee to care for the child or adult in question. The employee must have 26 weeks’ continuous service with the employer at the date of the application.

Q: Can an employer safely ignore a request for a flexible pattern of working made by an employee who does not qualify for the statutory right to request flexible working?

A: If an employee requests a flexible pattern of work but does not qualify for the statutory right to request flexible working (because, for example, he or she does not have at least 26 weeks’ continuous employment with the employer), the employer can ignore the request without risk of it resulting in a successful claim under part 8A of the Employment Rights Act 1996 (which relates to the statutory right to request flexible working). However, the employee could bring a claim under discrimination legislation. The most likely recourse for a female employee is a claim for indirect sex discrimination on the grounds that women are more likely than men to have primary responsibility for childcare, so fewer women can comply with the requirement to work full time.
Employers should also keep in mind their duty to make reasonable adjustments under the Equality Act 2010 when considering a request for flexible working from an employee with a disability.
It is therefore advisable for employers to take all requests for flexible working seriously and give them due consideration.

Q: How should an employer respond to a request for flexible working?

A: Within 28 days of receiving an eligible employee's application for flexible working under the Employment Rights Act 1996, section 80F, the employer must either accept the application and notify the employee accordingly in writing, or arrange a meeting with him or her to discuss the application and how it might best be accommodated or to consider alternative options. Within 14 days of this meeting, the employer must write to the employee either agreeing to the application and specifying the contract variation agreed and the start date on which it is to take effect, or refusing the application, stating which of the specified grounds for refusal it considers to be applicable and explaining why those grounds apply in relation to the application.

Q: How should employers deal with requests for flexible working that are not made under the flexible working provisions, for example where an employee fails to follow the prescribed procedure or is ineligible to make a request?

A: Where an employee is eligible to make a request for a flexible pattern of work but fails to follow the correct procedure, the employer could either deal with the request regardless of the employee's failure, or invite him or her to submit the application in the correct way. This is preferable to refusing the request at the outset just because the employee failed to make a compliant formal application. Directing the employee towards the correct procedure reduces the likelihood of him or her later claiming that the employer failed to deal with a request for flexible working.
Where the employee is ineligible to make a flexible working request under the provisions, the employer could consider the request in any event, following a procedure based on the formal statutory procedure. Doing so will help to create a positive working environment in which employees feel that that they are treated equally. It is also likely to reduce the risk of a sex discrimination claim arising out the employer's failure to consider a request for flexible working.

Q: Is an employee who is requesting flexible working required to provide proof of his or her parental/caring responsibilities?

A: No, there is no legal requirement for an employee to provide evidence of his or her parental or caring responsibilities. The employee does not have to demonstrate why he or she needs to be the person who provides the care, or the particular level of care required. For example, an employee wanting to work fewer days to look after his or her elderly father does not have to show that the father is unable to cope on his own.

Where an employer has reasonable grounds for suspecting that an employee is abusing the statutory request procedure and acting dishonestly, for example a suspicion that the employee does not in fact have any caring responsibilities, it should initially approach the employee informally and request the required proof, bearing in mind that the employee does not have a statutory obligation to provide it. If the employee does not provide any proof and persists with what the employer has reason to suspect is a dishonest application, it should instigate the disciplinary procedure. As part of the disciplinary investigation, the employer can request evidence of parental or caring responsibilities.
Employers should use their disciplinary procedure only in limited circumstances, where there is a genuine concern about dishonesty. Most flexible working requests should be dealt with in good faith without the need for evidence.

Q: What information should an employee's request for flexible working under the statutory procedure contain?

A: A flexible working request should be in writing (email or fax is acceptable) and:
• be dated;
• state that the application is made under the statutory right to request flexible working;
• confirm the employee’s relationship with the child or adult in question;
• specify the change(s) to working arrangements that the employee would like;
• state the date on which the employee proposes the requested change(s) should take effect;
• indicate the effect(s) that the employee thinks the change(s) will have on the employer, and how he or she thinks any such effects might be dealt with; and
• indicate if the employee has previously submitted a request for flexible working and, if so, when.

Q: If an employer has previously accepted requests for flexible working from female employees, and receives a request from a male employee that it does not want to accommodate, what are the risks of refusing that request?

A: • An employer in this situation is vulnerable to claims on two counts. First, the employee could claim that the flexible working provisions have been breached. Second, he could claim direct sex discrimination.
• Under the flexible working provisions, employers must comply with the proper procedure for dealing with requests for flexible working. Requests can be refused only on one of a number of permitted grounds. If the request is rejected the employee may claim in the employment tribunal that the employer failed to deal with his request properly, or that it rejected it on the basis of incorrect facts. Therefore the employer must be able to demonstrate that it followed the procedure, and that one of the permitted reasons for rejecting the request applied.
• A claim of sex discrimination is a potentially more significant risk. The employee may bring a claim of direct discrimination on the ground that he was treated less favourably than his female colleagues, because of his sex. The employee in this situation would have actual comparators that he could point to, to establish his case of direct discrimination. However, it would also be possible for him to argue that a hypothetical female comparator in the same post would have been treated more favourably. The employer cannot justify direct sex discrimination. It must be able to show that the difference in treatment was unrelated to the employee's sex.

Q: Can an employer use a trial period to test whether or not a proposed flexible working arrangement would work?

A: Yes, an employer and employee may decide that a trial period should be implemented in respect of proposed flexible working arrangements. A trial period allows both the employer and the employee an opportunity to review how the arrangements work in practice, and whether or not they are likely to create any practical difficulties for the employee's department or for the business as a whole.
Before embarking on a trial period, the parties must agree to extend the statutory time limit for reaching a final decision under the flexible working procedure. The agreement must be recorded in writing and sent to the employee. It must:
• be dated;
• specify to which period the extension relates; and
• specify the date on which the extension is to end.
In addition, the employer and employee should document the new working pattern, making clear that it is only a temporary variation to the terms of the employee's contract. The written agreement should state the start and end date of the trial period (with the employer reserving the right to cut it short or lengthen it as necessary) and the changes that have been agreed. It should record that the employer reserves the right, at the end of the agreed trial period, to require the employee to revert to his or her previous working arrangement. The document should be signed by both parties.

Q: In what circumstances can an employer reject a request for flexible working?

A: An employer's refusal to accept an eligible employee's application for flexible working under the Employment Rights Act 1996, section 80F must be based on one or more specific grounds. These are the burden of additional costs; a detrimental effect on ability to meet customer demand; an inability to reorganise work among existing staff or recruit additional staff; a detrimental impact on quality or performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.

Q: Is there any right of appeal where an employer rejects an application for flexible working?

A: Yes. Where an employee has applied for flexible working under the Employment Rights Act 1996, section 80F and is unhappy with the employer's decision he or she has 14 days in which to lodge an appeal. Within 14 days of this notice of appeal being given the employer must hold a meeting with the employee to discuss the appeal. The employer must then convey its decision to the employee in writing within 14 days of the appeal hearing. If the appeal is upheld, the employer's letter must specify the contract variation agreed to and the date from which it is to take effect. If the appeal is dismissed, the letter must set out the grounds for the decision and contain sufficient explanation as to why those grounds apply.

Q: If a flexible working request is granted, can the employee request another change to working patterns at a later date?

A: Yes. An employee can make another formal request under the legislation after 12 months of the initial request. The employee is not prevented from making subsequent requests because he or she has already made a request. The employer will again have to follow the procedural requirements set out in the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207).

Q: Is an employee who is requesting flexible working required to demonstrate that the child or adult in relation to whom the application is being made requires a particular level of care?

A: No. Employees who request flexible working under the statutory right to do so are not required to show that the child or adult in question requires a particular level of care, or why they personally must provide the care. For example, an employee asking for a change in hours to care for an elderly relative will not need to show that the relative qualifies for disability living allowance, or is unable to cope alone. Neither would a father asking for reduced hours to care for his child be required to show that the child could not be cared for by its mother or someone else.

Q: Do adoptive parents and legal guardians qualify for the right to request flexible working?

A: Yes. Under the reg.3 of the Regulations, adoptive parents, guardians and foster carers can request flexible working.
In October 2007, the scope of the Regulations was extended in relation to adoptive parents by the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No.2) Regulations 2007 (SI 2007/2286). Employers must consider requests from employees where the adoption process has not been finalised but the employee has been approved by an adoption agency for the placing of a child, or where the employee has given notice of his or her intention to apply for an adoption order. Adoption from adoption agencies that are not UK based also qualify.
In addition, employers must consider requests from employees who foster children privately (rather than through fostering services), and from employees in whose favour a residence order is in force in respect of a child.
Employers must also consider requests from the spouse, civil partner or live-in partner of the above.

Q: Do grandparents have any right to paid or unpaid leave to spend time with their grandchildren?

A: Grandparents have no right under UK employment law to paid or unpaid leave to spend time with their grandchildren in their capacity as grandparents. However, they may have rights to parental leave in very limited circumstances. The right to parental leave is exercisable by an employee who has one year's continuous employment with the employer and has, or expects to have, formal parental responsibility for a child. Grandparents can acquire parental responsibility either by adopting a child or by a residence order being made in favour of them. However, the cases in which this is likely to happen will be extremely rare. If parental responsibility for a child is acquired by the grandparents, they will be entitled to take parental leave for the purpose of caring for that child. The period of parental leave is 13 weeks for each child, which must be exercised before the child's fifth birthday or before the fifth anniversary of the child's adoption. If the child is disabled, up to 18 weeks' parental leave may be taken up until the child's 18th birthday.
Grandparents may also be able to make a statutory application for flexible working arrangements to enable them to care for a grandchild who is under the age of 17 (or under the age of 18 if disabled), but only if they either adopt or become the legal guardian of the child and they have responsibility for the child's upbringing. Again, the circumstances in which this situation will arise will be rare. In this case, they will need to have worked for their employer for at least 26 weeks at the date the flexible working application is made.
Grandparents have no entitlement to take either paternity leave or adoption leave.

Q: Is an employee who is shortly to foster a child entitled to paid time off for this purpose?

A: There is no statutory right to paid time off for employees who foster a child.
The only right that an employee would have in these circumstances would be the right to request flexible working to care for a child under the age of 17 (or 18 if disabled). This right is available to employees who have a minimum of six months' continuous service as at the date the application is made and who have, or expect to have, responsibility for the child's upbringing. A request for "flexible working" in this context means a request to reduce or change the employee's working hours or shift pattern, or a request to perform some or all of the job from home. If a change to the employee's working pattern is agreed, this will, unless expressly agreed otherwise, represent a permanent change to the employee's terms of employment.
The employer is not obliged automatically to agree to a request for flexible working, but must follow through a statutory procedure to consider the request and may refuse it only if one of a specified list of business reasons applies to the specific circumstances.