Frequently Asked Questions

Flexible Working

• What is flexible working and how does it operate?
• Can I request Flexible Working?
• I understand that since having a baby I can work part time – is this correct?
• I want to change my hours to fit around my childcare arrangements – what are my rights?

Q What is flexible working and how does it operate?

A Parents of children under six (or of disabled children under 18) can apply to their employer to work flexibly. Employers have a duty to consider an application seriously.

To take advantage of this right, you must:

• Have worked for the same employer continuously for at least 26 weeks

• Apply in writing no later than two weeks before the child's sixth birthday (or 18th birthday in the case of a disabled child)

• Have or expect to have responsibility for the child's upbringing

• Make the application to enable you to care for the child

• You cannot apply to work flexibly if you have made another application in the previous 12 months

• You cannot apply to work flexibly if you are an agency worker

• Flexible working includes a request to change the hours you work, to change the times you are required to work, or to work from home

• If your employer agrees to the request for flexible working, the new working arrangement becomes a permanent change to your contract

• If you wish to make the flexible arrangement temporary, you must make that clear and specifically agree to revert to the original or other terms

• Your employer has to arrange to meet you to consider your request seriously, and within 14 days of that meeting must write to you either to agree the new working arrangement with a start date or give clear business grounds why your request is refused

• You can appeal that decision within the next 14 days

You may discuss your request and the reasons for it with your local UNISON representative before asking for a change, or if there is a refusal. You are also entitled to be accompanied at the meeting and the appeal by your local UNISON representative.

Q Can I request Flexible Working?

A From 6 April 2003 employees who have 26 weeks of continuous employment with their employer can request a different working pattern to enable them to care for a child under 6 years of age or a disabled child under 18. The request must be considered under a special procedure and may only be refused on certain specified grounds. There is no automatic right to flexible working; your employer can refuse even if it is an unreasonable refusal.

To qualify for the right you must:

• be an employee, i.e. someone with a contract of employment. So some casual or temporary workers may be excluded. Agency workers are excluded

• be the mother, father, adopter, guardian, or foster parent of the child, or be married
  to one of them or be their partner. (This is defined as a person, whether of a different sex or the same sex, who lives with the child and the mother, father, adopter, guardian, foster parent in an enduring family relationship, but not a blood relative)

• have or expect to have responsibility for the upbringing of the child

• not have made another application for flexible working during the previous 12 months

• make the request in order to care for the child

There is a complicated procedure for making the request, and the following is a brief summary:

• You must make the request in writing (the Department of Trade and Industry has produced standard application forms which you can use if you wish)

• You must specify what change you are seeking, and when it is to take effect. You also explain what effect, if any, you think the change will have on your employer, and how in your opinion any such effect can be dealt with (this does not have to be in complicated detail). You must explain the relationship between you and the child

• Your employer can refuse the request on specified grounds if; there is a burden of additional costs; detrimental effect on ability to meet customer demand; inability to re-organise work among existing staff; inability to recruit additional staff; detrimental effect on performance; insufficiency of work during the periods the employee proposes to work; planned structural changes

• If your employer agrees to the request it will take effect as a permanent change to your contract, although you can agree with your employer that it will last for a set period of time only

• If your employer does not agree to the request at this stage, he/she must hold a meeting with you within 28 days to consider it

• You are entitled to be accompanied at the meeting by anyone also employed by the same employer e.g. a shop steward. The companion can address the hearing and question management but not answer questions on your behalf. If your companion is not available you can ask for the meeting to be postponed for up to 7 days

• Your employer must, within 14 days of the meeting, inform you in writing whether your request has been accepted or rejected. If rejected your employer must give reasons for doing so. You have a right of appeal. You also have the same right to be accompanied at the appeal as applied to the original meeting

• You can complain to an Employment Tribunal on the grounds that your employer has failed to hold a meeting or an appeal meeting, failed to give you a decision on the request or appeal, refused the request on non-specified grounds, or rejected the request on incorrect facts. The time limit for making a claim is 3 months. The Tribunal can order the employer to re-consider the request and/or compensation

• In addition you can complain if your employer has refused you the right to be accompanied at the meeting or appeal, or has refused to allow a postponement of the meeting. It is also automatically unfair to dismiss you or subject you to a detriment for requesting flexible working

Q I understand that since having a baby I can work part time – is this correct?

A You do not have an automatic right as such to return to work part-time. Your basic right is to return to the same or a similar job that you were doing before you left. However, if you have a good reason for needing to work different hours (for example because you cannot find or afford childcare to fit your old hours) your employer should allow you to change your hours unless they have a good business reason for refusing.

You do now have a right to ask your employer to work differently. Your request has to be in writing and you need to follow a formal procedure. It is important to remember that if you do go back part-time you do not have the right to return to full-time hours without your employer's agreement.

 

Q I want to change my hours to fit around my childcare arrangements – what are my rights?

A If you have a child under 6, or a disabled child under the age of 18 and you have worked for your employer for 26 weeks, you now have the right to ask your employer to change your hours to fit in with your childcare responsibilities.

There is a set procedure to follow and your application must include certain information as otherwise it will be rejected. It is important to get it right as you can only make one application a year. Any change to your contracted hours you agree to represents a permanent change, unless you agree a 'trial' period or a review date with your employer at the very outset.

If your employer refuses your request they must justify it in writing. If your employer does not follow the correct procedure then you can take a claim to an employment tribunal.

This 'right to request flexible working' runs parallel to your rights under the Sex Discrimination Act. The Sex Discrimination Act says that an employer must seriously consider a woman's request to work flexibly so that she can look after her children. This applies to all women with children (and so has no service condition nor does it depend upon the age of your child). You must however have a good reason for asking to work differently - just as your employer must have a good reason for refusing.