Osborne Clarke employment law specialist Victoria Parry reports on imminent new flexible working obligations for employers. They will have to consider any request received from parent employees for changes to working patterns to accommodate child care.
There is currently no right for employees who are parents to compel their employers to adjust their working arrangements in order to accommodate childcare responsibilities. However, from April this year, employers will have a legal obligation to give serious consideration to applications for flexible working arrangements, from parents of children under 6 years old (or 18 if their child is disabled). It is estimated that nearly 4 million people will be able to apply for the right.
Is there currently a right for parents to change their working arrangements so they can look after their children?
There is currently no statutory right to request flexible working. Until now, female employees have relied on indirect sex discrimination legislation if, for example, they are refused a job because their childcare commitments do not fit in with the hours.
What does the new legislation say?
The new legislation enables parents to request a contractual variation of their working hours or the place in which they work in order to care for their children.
When does the new legislation come into force
The relevant regulations will come into force on 6 April 2003.
Who is eligible to apply for flexible working
The right only applies to employees. This means that genuine freelancers will not be entitled to apply. The employee must also have worked for their employer continuously for 26 weeks before they are entitled to make the request.
"Parent" includes anyone who is the biological parent, guardian, adopter or foster carer of the child, or anyone who is married to or the partner of such a person and lives with the child. The employee must also have responsibility for the upbringing of the child and be making the application in order to care for them.
The parent can only make the application where their child is under six, or under 18 in the case of a disabled child.
What’s the procedure?
The onus is on the employee to make the application for flexible working. The application must set out the working pattern which the employee wishes to adopt, explain the possible effect of the change on the employer and suggest how it might be accommodated. The employer then has 28 days to meet the parent to discuss the request and how it might be accommodated. Within 14 days of the meeting, the employer must write to the employee to either agree to a new work pattern or to provide a clear business reason as to why the change is not possible.
On what grounds can an employer refuse the request?
An employer can only refuse an application on one of the grounds set out in the legislation. These are:
- The burden of additional costs;
- The detrimental effect on ability to meet customer demand;
- The inability to reorganise work amongst existing staff;
- The detrimental impact on quality;
- The detrimental impact on performance;
- The insufficiency of work during the period the employee proposes to work; and
- Any planned structural changes.
What can the employee do if they are unhappy about the employer's decision?
An employee can bring a claim at an employment tribunal if the employer has failed to hold a meeting with them in accordance with the statutory procedures or where it has failed to notify the employee of its decision. Tribunals will not have the power to question the employer's reasons for declining a request, as long as it has followed the correct procedure and given sufficient explanation of the business reason. However, bearing the possibility of an indirect sex discrimination claim in mind, employers would be advised to consider their response carefully. The tribunal can order the employer to reconsider their decision and/or make an award for compensation. At present the maximum penalty proposed is 8 weeks' pay (with a weeks' pay capped at £260). Please note these rights are in addition to, not instead of current laws on sex discrimination and therefore an employer would still be wise to carefully consider the reasons why any proposals for part-time working are rejected.