Right to request flexible working extended

Since 2003, the right to request flexible working has been available to employees with more than six months’ service in order to care for a child under the age of six (or 18 if the child is disabled). In 2007, this right was extended to carers of adults, although certain relationship criteria must be satisfied for the employee to be eligible.

In the Queen’s Speech last autumn, the Government indicated that it intended to extend flexible-working rights to parents with children above the age of six. Indeed, the Prime Minister voiced the possibility of extending the right to parents of “older, teenage children”. Imelda Walsh was commissioned by the Department for Business, Enterprise and Regulatory Reform in November 2007 to lead an independent review into the extension of this right, and recommendations were made to the Government this spring.

Extension of the right

Taking into account the findings of the independent review, the Government announced on 15 May 2008 its intention to extend the right to request flexible working to all parents of children aged up to 16 years.

The existing law

When making a request for flexible working, an employee must meet the qualifying conditions and comply with the procedural requirements contained in the legislation. The employee must submit a written request. If the request complies with the statutory requirements, there will be a meeting with the employer to discuss the application. The employer must then provide a written response; if the request is unsuccessful, the employee must be allowed a right of appeal. There are time limits to each stage of the process that both employer and employee must comply with.

An employer may reject the application on any of the following grounds:

• the 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 impact on quality

• detrimental impact on performance

• insufficiency of work during the periods the employee proposes to work

• planned structural changes.

The remedies for an employer’s breach of this procedure are limited to:

• the issuing of an order that the application be reconsidered

• compensation not exceeding eight weeks’ pay per individual affected.

Employers’ response

The response of employers to the flexible-working legislation to date has in general been to acknowledge that the right to request flexible working has worked satisfactorily. This is because it is simply a “right to request” and not an absolute right to work flexibly. However, the Government’s recent proposals to extend the statutory right have been met with some nervousness from employers and calls for the extension to be delayed until October 2009 to give employers time to prepare staff, policies and practices. We now await the government consultation to see how this extension will be implemented in practice.