Employees with children or who care for an adult may ask to change their working pattern in order to accommodate their responsibilities, perhaps by moving to part-time hours or a job-share arrangement or working from home. Employers receiving a request of this type need to bear two legal considerations in mind. One is that unjustifiably refusing such a request may amount to indirect sex discrimination. The other is that employers are under a specific legal obligation to give serious consideration to employees' requests for a change in hours or place of work, if they are asking for the change in order to care for their child or certain adults.
A much larger proportion of women than of men have primary responsibility for childcare and certain adults. It is therefore likely that an employer's refusal to allow part-time working, jobsharing or flexible working hours may have a bigger impact on the women in its workforce than on the men. This means that refusing a woman's request for this type of arrangement is likely to amount to indirect sex discrimination, unless the company can objectively justify its position on the basis of a real and demonstrable business need ( indirect discrimination ).
A refusal might be justified, for example, if the employee's job involves continuity of customer care, which would be prejudiced by part-time working or a job-share arrangement. Companies who need advice on justification should contact their Association.
Employees of either sex are entitled under the Employment Rights Act 1996 to ask their employer to consider changing their hours of work or working times or allowing them to work from home, to enable them to care for their children and certain adults.
In respect of childcare, an employee qualifies to make such a request if he or she has been working for the company for 26 weeks by the time the request is made and has a child under the age of 6 or a disabled child under the age of 18. Biological and adoptive parents have this right, as do guardians and foster carers. Anyone who is married to one of these people can apply, as can anyone who is a partner (of either sex) of one of these people. A partner is someone who lives with the person and the child in an enduring family relationship, but does not include parents, grandparents, siblings, aunts and uncles. In respect of adult care, the employee qualifies to make the request if the employee has been working for the company for 26 weeks by the time the request is made and is or will be the carer of an adult who is either their partner or is a relative or who is neither of these two but lives at the same address.
There are detailed procedural rules governing the way in which a request must be handled, set out in the Flexible Working (Procedural Requirements) Regulations 2002. These are summarised below. Further detail is available from your Association or the Department of Business and Regulatory Reform ( family rights links ). In this summary, it is assumed that the employee making the request is a woman, but men also have the right to apply.
- The employee must put her request in writing, explain how she meets the qualifying conditions, and specify the change she wants and when she would like it to start. She should also suggest how any effect the change might have on the company could be dealt with. The Department of Business and Regulatory Reform has produced a model letter that an employee can use to make her request ( Family rights links ).
- Within 28 days, the company must either agree to the request or hold a meeting with the employee to discuss it. (If the person who would normally deal with the application is on sick leave or holiday when the request is received, the time limit expires 28 days after that person returns to work or 56 days after the application is made, whichever is sooner.)
- If the employer then refuses the request, the employee has the right to appeal within 14 days, and the employer must hold a meeting with the employee to discuss the appeal.
If the company refuses the request or any appeal, it must confirm to the employee in writing the grounds for its decision (grounds for refusal ) and explain why it considers those grounds apply. If it agrees to the request, it must confirm to the employee in writing what change has been agreed and when it will take effect.
- An employee has the right to be accompanied by another worker employed by the company at the meeting at which her request is discussed and at any appeal meeting (the right to be accompanied ).
The company is entitled to refuse an employee's request if it considers that one or more of these grounds applies:
- The change would involve additional costs.
- The company would be unable to recruit additional staff or re-organise work among existing staff.
- The change would have a detrimental impact on quality or performance or ability to meet customer demand.
- There would be insufficient work during the periods the employee wants to work.
- The change would not be compatible with planned structural changes.
The breadth of issues covered in this list shows that a company has substantial scope for refusing an employee's request, provided it bases its decision on correct facts. Thus, although the tribunal is not entitled to look to see whether the employer acted fairly or reasonably in putting forward its rejection of the flexible working request, the tribuanl is entitled to look at the ground which the employer asserts was the reason why the application was not granted to see whether it was factually correct. It should be borne in mind, however, that the test of justification in sex discrimination law is relatively rigorous (justification ), so that a company that turns down a request may still find itself in breach of sex discrimination law, even if the ground for its decision falls within the list. In particular, cost considerations are included in the list but are unlikely in themselves to be sufficient justification for indirect sex discrimination.
Companies can obtain further advice from their Association on when they may have grounds for refusing a request.
The legislation giving the right to request flexible working assumes that any change that is agreed will involve a permanent change in the employee's terms and conditions of employment. The company or the employee may wish, however, for the change to be on a trial basis or to last for a limited period only. The company may, for example, have grounds for refusing a permanent change but may be prepared to accept a temporary arrangement; or the employee may want to revert to his or her original working hours when his or her child reaches school age. In these circumstances, it would be advisable for the company and the employee to agree in writing when and on what basis the arrangement may be reviewed or brought to an end.
Where employees' hours are reduced, they remain contractually entitled to their other terms and conditions, including benefits (reduced pro rata where relevant). Further, the Part-time Work Regulations give them specific legal protection from being treated less favourably than when they were working full-time, unless their employer can objectively justify doing so (part-time working).