Flexible working

Family friendly working

New family friendly employment law has introduced the right to ask your employer for a change to your working hours, to take Parental Leave, and to take Time Off for Dependants to make arrangements in an emergency for the care of your dependants. The intention is to help parents to balance their childcare responsibilities with work by providing greater choice.

Maternity and Paternity Leave, also contribute to family friendly working and are covered elsewhere.

The right to request is designed to enable parents and their employers to find flexible working solutions wherever possible that suit them both. The law encourages dialogue and and allows a lot of flexibility in how to consider a request whilst requiring employers to follow a basic procedure.

You must think through carefully how you can best balance your family finances with having enough time for your children. Remember, if you request to work less hours this will result in a reduction in your pay.

Examples of different working patterns and practices

Jobsharing

where you and someone else share responsibility for a full-time job; you are likely to have to propose yourselves together as jobsharers to an employer.

Flexitime

may allow you to choose the times you start and finish work.

Term-time working

may seem ideal if you have young children but it can make benefit claims complicated if you are not paid through the holidays.

Part-time work

is anything less than the standard hours in the workplace.

Annualised hours

allow you to work your contracted number of hours work per year at times to suit you.

Homeworking –

working at or from home, has been made possible by developments in information technology.

Agency and temporary work

can enable you to earn some extra money and at the same time keep in touch with the world of work, but it does make benefit claims complicated and you do not have the same employment rights as employees. For example, only employees have the right to paid time off for antenatal care and the right to take parental leave.

Voluntary work

without pay allows you to gain work experience and participate in an environment that interests you. You may be paid for your expenses without your benefits being affected.

Self-employment

allows you to be your own boss with the freedom to organise your own work; at the same time you have all the responsibilities of planning for your business and looking for new customers.

Right to request a change to working hours (flexible working)

If you are an employee, you may have the statutory right to request a change to your contract to enable you to care for a child, and to have that request seriously considered by your employer.

Bear in mind that the negotiation process may take about three months. If you can ensue that your written application provides as much detail as possible, this will help your employer to consider your application promptly.

You can ask to change:

the hours you work (for example, to work part time);
the times you work (to fit in with your childcare);
your place of work (for example, to work from home).

Who qualifies for the right to request change to working hours

You must:

be the parent, adoptive parent, guardian or foster carer of a child under 6, or a disabled child under 18;
have, or expect to have, responsibility for the child’s upbringing;
have worked for your employer for at least 26 weeks; and
have not made a request for flexible work under this statutory right within the last 12 months.

You can apply up to 2 weeks before the child’s 6th or 18th birthday, as appropriate.

Employment rights if your request is allowed

Your contract will be changed permanently to reflect your new working pattern, unless you have agreed a temporary change.

You cannot be demoted, be paid at a lower hourly rate, or have less paid holiday pro rata than other staff.

Bear in mind, however, that if you:

change from full-time to part-time work, there is no right to go back to full-time work at a later date, unless you negotiated this at the time; and
were made redundant after going part-time, your redundancy pay would be based on your new part-time salary.

How to request flexible working

The strict timetable and procedure for negotiations between you and your employer must be complied with, unless you agree between you to extend the timetable.

Your application for flexible working

must be in writing, and you must:

state that it is an application for flexible work under the statutory right;
state the working pattern you are asking for and the date you want it to start;
explain how you think the new working pattern may affect your employer and how this could be dealt with;
confirm that you are applying as a parent or as someone with parental responsibility;
state whether you have made any previous applications, and when you made them; and
date your application.

If you leave anything out, your employer can return your application to you and ask you to resubmit when it is complete. The negotiation timetable starts only when you have made a valid application.

Your application can be by letter, fax or email, or on your employer’s own application form, or on the FW(A) Flexible Working Application Form available from the DTI (Department of Trade and Industry) website. Keep a copy of your application for your own records.

Think carefully before making the request. Consider what impact, if any, granting your request will have on your employer’s business. Try to anticipate any difficulties or problems that your employer may raise and, if possible, address these in your application.

Your application date is normally the date it is delivered by post, or the date it is emailed. Ask your employer to acknowledge receipt of your application.

Your employer must respond to your application

and must notify you of their decision within 28 days.

If the person who would ordinarily consider your application is on holiday or sick leave when you make your application, the 28 days starts to run from the date they return.

If they agree to your request outright, the written notification must confirm the variation in your contract. Otherwise, they must arrange a meeting within 28 days, at a time and place convenient to both you and them.

Meeting to discuss your application

This meeting is for you and your employer to discuss your application in detail, how it could be made to work and including how your requested pattern of working may affect the business. You and your employer should both try to be as flexible as possible in trying to reach a solution that is acceptable to both of you.

If you cannot attend the scheduled meeting, tell your employer as soon as possible and rearrange a mutually convenient time.

Right to be accompanied at the meeting

You have the right to be accompanied by another worker, or a trade union representative employed by the same employer. Your companion can speak at the meeting and discuss things with you but cannot answer questions for you.

If your companion cannot attend the meeting, it can be rescheduled within the following seven days, at a time that is suitable for everyone.

Preparing for the meeting

Prepare for the meeting as thoroughly as you can:

think carefully about your childcare needs and the working pattern you need to fulfil these;
where possible, discuss your desired working pattern with colleagues to see whether they can help or if anyone is likely to be against it;
make sure that your companion is fully informed and supportive of your request.

Your employer can treat your application as withdrawn,

and must confirm this in writing, if you have:

told them verbally or in writing that you are withdrawing it;
failed, without good reason, to attend two scheduled meetings; or
not (without good reason) provided them in your application with enough information to assess whether to agree to your request.

Employer’s decision following the meeting

Your employer must let you know their decision in writing, and dated, within 14 days of the meeting.

If they accept your request, their notice should state:

the contract variation agreed to; and
the date on which it will start.

If they refuse, the notice must:

state the business ground(s) for refusal;
give you sufficient explanation as to why that ground applies in your case; and
set out the appeal procedure.

Guidance for employers suggests that if they cannot agree to your request, they should consider a compromise arrangement.

Business Grounds for refusal of flexible working

Possible ground(s) for refusal are:

additional costs to the business;
detrimental effect on the ability to meet customer demand;
inability to reorganise the work among existing staff and/or an inability to recruit additional staff;
detrimental impact on the quality and/or on performance;
insufficiency of work during the periods you propose to work; and
planned structural changes to the business.

Appealing against the grounds for refusal of flexible working

If you do not accept your employer’s ground(s) for refusal, you can appeal within 14 days of receiving the notice:

state in detail your reasons for appealing;
mention any facts that were incorrect; and
sign and date your letter.

If your appeal is allowed, your employer should inform you in writing within 14 days of receiving your appeal. If your appeal is not allowed straightaway, there must be an appeal meeting, also within 14 days.

Appeal meeting

The appeal meeting is your opportunity to challenge your employer’s reason(s) and explanation. As with the initial meeting, you have the right to be accompanied. Be sure you are thoroughly prepared.

Following the appeal meeting, you must be given a written decision, with reasons, within 14 days.

If your employer does not follow the proper procedure or your request for flexible working is refused

Evidence shows that the quickest and the most effective way for an employee to resolve an issue is to speak with their employer.

If you are unhappy with the outcome or you are unhappy with the way your application has been handled in the first instance, it is likely to be in your interests to try to resolve the problem within the workplace. Speak to your employer.

Where you are unable to resolve the issue with your employer you should seek expert advice. In cetainin circumstances you may make a complaint to an Employment Tribunal but there are less formal alternatives such as involving an external third party mediator. This might be someone from ACAS, a union representative or another person with appropriate expertise.

Child-friendly working and sex discrimination

When to base your request on sex discrimination law

Sex discrimination law might help you, for example, if:

your child is aged over six and not disabled;
you have already made a request under the statutory right to request a change in working hours within the last 12 months, but you need to make another request due to a change in circumstance;
you have not worked for your employer long enough to qualify for the statutory right;
you are not an employee;
your request under the statutory right has been refused.

Requesting a change to working hours under sex discrimination law

It is best to make your request in writing, making clear what you are requesting and how you think your work could be done differently. Your request for a changed pattern of working must be so that you can care for a child.

Parental Leave

Parental Leave is designed to give parents more time with their young children – it is unpaid and can be taken in addition to your annual paid leave.

As a lone parent you could be eligible for Income Support and/or Housing Benefit during unpaid Parental Leave.

How Parental Leave can be used

Parental Leave can only be taken to care for a child. Your employer cannot ask you for any evidence as to your reasons for taking leave but can ask for evidence of entitlement, for example, your child’s date of birth, that you have parental responsibility, or, where applicable, evidence of your child’s award of Disability Living Allowance.

These are some examples of how Parental Leave could be used:

to spend more time with young children;
to accompany a child during a stay in hospital;
to check out new schools;
to settle a child into new childcare arrangements;
to allow the family to spend more time together, for example, taking the child to stay with grandparents.

A father who is not entitled to Paternity Leave, could take Parental Leave to be present at the birth of his child.

Who can apply for Parental Leave

You can take Parental Leave if you are an employee, and:

you are the parent (mother, father or adoptive) of a child under five, or you have or expect to have Parental Responsibility for the child,
you have been continuously employed with the same employer for at least a year; if your child was born or adopted between 15/12/94 and 14/12/99, you can rely on a one-year period of employment with a previous employer between 15/12/98 and 09/01/02, if necessary.

Parental Leave must be taken before your child’s fifth birthday, unless she or he:

is adopted, in which case you must take the leave within five years of the adoption placement, or before the child is 18, whichever is sooner;
is entitled to Disability Living Allowance (DLA), in which case you can take Parental Leave up until your child’s 18th birthday;
was born or adopted between 15 December 1994 and 14 December 1999, in which case you must take the leave by 31 March 2005, or by the child’s 18th birthday if that is sooner.

Parental Leave schemes

The statutory minimum scheme is unpaid, and you:

can take only four weeks each year for each child;
must take it in blocks of a week or more;
you can take a total of 18 weeks leave up to your child’s 18th birthday, if your child is disabled and in this case can take leave in blocks of one day instead of one week; and
must always give 21 days’ notice if you want to take leave.
There may be an agreement at your workplace which provides more generous Parental Leave than the statutory minimum.
Your employer can postpone the date of your Parental Leave for up to six months if this would be reasonable, that is if your absence would mean the business would be unduly disrupted, and must give you notice of this within seven days of your request. Parental Leave cannot be postponed if it is being taken immediately after the child’s birth or placement for adoption.
Your employer must not unreasonably refuse your request for Parental Leave.
If your employer offers contractual paid Parental Leave, this will reduce your period of unpaid Parental Leave by the same amount.

Employment rights during Parental Leave

During Parental Leave you continue to be an employee, but unless your contract states otherwise, you will only be entitled to the following terms and conditions:

notice is required to end your employment (either by you or your employer);
the right to redundancy pay;
the right to use any disciplinary and grievance procedures;
both you and your employer must continue to act with mutual trust and confidence;
if your contract prevents you from working for another employer, this will still apply; and
any confidentiality clauses will also apply.

Right to return to your job after Parental Leave

If you take Parental Leave of:

four weeks or less, you will have the right to return to exactly the same job;
four weeks or less following Ordinary Maternity Leave (OML), you can also return to the same job; or
more than four weeks, or following AML, you have the same right to return as a woman returning to work after AML.

Time off for Dependants (TOFD)

You may be entitled to take reasonable amounts of leave to deal with emergencies involving other people who rely on you (dependants), and to make any necessary longer-term arrangements for their care. Your employer is not obliged to pay you for this time off.

If you can anticipate needing time off you should make different arrangements with your employer.

Who can apply for time off for dependants?

If you re an employee you can take emergency leave from day one of starting a job, whatever hours you work.

Circumstances covered by time off for dependants

You can take the time off to:

help if a dependant falls ill, gives birth, or is injured or assaulted, or to deal with arrangements for their care;
deal with the death of a dependant, for example, to make the funeral arrangements, or to attend the funeral;
deal with the care of a dependant, including when arrangements for their care break down unexpectedly; or
deal with an unexpected incident at school involving your child (when the school has responsibility for your child).

Let your employer know why you are absent as soon as you can and how long you are likely to be away. You do not need to put this in writing.

A dependant can be

a child, parent or anyone who lives with you as part of your family (but not your lodger, boarder, tenant or employee).

In cases of illness or injury

you can take time off to care for someone who reasonably relies on you for help or to make arrangements for their care. This could include taking time to care for an elderly neighbour who has had an accident.

How much time off for dependants can be taken?

There is no legal definition of how much time off is reasonable – the right is intended for genuine emergencies. It has to be necessary for you to take the time off and the time taken has to be reasonable for the circumstances. For example, if your child has chicken pox you can take time off to deal with this crisis and to make arrangements for childcare, but you probably could not take two weeks off while your child is in quarantine, since this would no longer be an emergency.

Your employer should take into account that being a lone parent may make it more difficult for you to arrange alternative childcare.

There is no limit to the number of times you can take time off to care for a dependant, but your employer could start disciplinary proceedings against you if they thought you were abusing the use of emergency leave.

Refusal of a request for time off for dependants

Your employer must not unreasonably refuse your request, treat you unfairly or dismiss you because you are taking, or have asked to take, emergency leave.

If you are dismissed or selected for redundancy for exercising the right to take emergency leave it will be an automatically unfair dismissal.

Always remember, if you have a problem about exercising your rights, the quickest and most effective way to resolve an issue is to speak with your employer, and to seek specialist advice before considering formal action.