Employment laws generate a lot comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti competitive, unduly restrictive and in many cases overly generous.
Each month, we are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right.
So far, we have tackled the following myths:
This month, we are tackling flexible working.
Parents have the right to work part-time.
No employee, whether or not they are a parent, has an absolute right to work part-time if their job requires a different working pattern such as to work full time.
Any of your employees can have a conversation with you to ask to work part-time, but only certain employees have a “right to request” flexible working under a statutory scheme introduced in 2003. However, this only gives employees a right to request a different working pattern, NOT a right to obtain it.
At the moment, the right to request is only available to employees with at least 26 weeks service who need a different working pattern to enable them to care for a child under the age of 17 (or 18 if their child is disabled), or to allow them to care for an adult. In all cases, employees can only make one request every 12 months.
The employee making the request must have a relationship with the child or person they wish to care for (although this requirement is due to change later this year and the right to request will be available to all employees with 26 weeks service whether or not they have caring responsibilities).
The procedure is somewhat complex and requires the employee to make a formal written request setting out what changes he/she wants to make to their working pattern and how these can be accommodated. You must then properly consider the application. There are fixed time limits which must be followed but these can be extended by agreement.
If you agree to the request, you should set out the changes in writing (either in a letter, or by issuing a revised contract of employment). The legislation anticipates that the change will be permanent, although many employers prefer to agree a trial period to see how the arrangement works in practice.
If you do not agree to the request, you should explain the reasons for your decision. This should include reference to one or more of the below permitted grounds set out in the legislation as follows:
1. Burden of additional costs
2. Detrimental effect of ability to meet customer demand
3. Inability to re-organise work amongst existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality and/or performance
6. Insufficiency of work during the periods the employee proposes to work
7. Planned structural changes
In reality, it is not difficult for employers to establish one of these grounds and there is little an employee can do to challenge it, other than by raising an appeal, unless they can show that the decision was discriminatory.
Complaints to an Employment Tribunal about the statutory scheme can be issued only if the request has not been dealt with strictly in accordance with the procedural requirements, or where the decision is not based on one of the eight grounds, or has been based on incorrect facts.
However, even if you properly follow the statutory procedure, it may be possible for an employee to bring a discrimination claim if you refuse their request to work part time (sex discrimination being the most likely complaint), particularly a request from a woman returning to work from maternity leave. This is a complex area, and falls outside the scope of this myth buster.
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