Richard White of Withy King looks at flexible working

New rules are set to be introduced in April that will give parents with children up to the age of 16 years the right to request flexible working. In today’s challenging economic climate, some businesses may welcome the move and be keen to encourage flexible working practices as a means of cutting costs and attracting the best people.

But many others will be concerned about the impact of the legislation on their businesses.

o Eligibility Employees with children up to the age of six years, disabled children up to the age of 18, or those who care for a dependant adult, have been able to request flexible working for some time.

However, from next month, this right will be extended to all employed parents of children up to the age of 16, affecting an additional 4.5m people. Anyone who falls into this category will be able to ask their employer if they can vary their hours, the times they work, or the location they work from.

o Procedure Often employees will first broach the subject informally, usually verbally or via e-mail. Employers should encourage their employees to formalise their request and direct them to the Department for Business, Enterprise and Regulatory Reform (BERR) website, www.berr.gov.uk, where the necessary form can be downloaded.

Once an employer has received the completed form, they have 28 days to arrange a meeting with their employee to discuss the application.

It is essential the employer listens carefully to the employee’s request and explores all the issues. If the employer does not agree with the changes that are being requested, they should try to put forward alternative scenarios rather than just say ‘no’.

It may be useful to do some research before a decision is made, contacting recruitment agencies to find out whether a job share arrangement might be feasible, or consulting with other members of staff to see whether they might be prepared to pick up additional hours.

Once a decision is made, the employee should be notified in writing within 14 days of the meeting.

If the employer agrees to the employee’s request to work flexibly, a new contract of employment will need to be drawn up, or a letter of variation issued, which clearly sets out the new terms.

o Grounds for refusal Employers can refuse an employee’s request for flexible working on one of the following grounds: o Burden of additional costs o Inability to meet customer demand o Inability to reorganise work among existing staff o Inability to recruit additional staff o Detrimental impact on quality o Detrimental impact on performance o Insufficient work available during the period the employee proposes to work o Planned structural changes Where a decision is made to reject an employee’s request, employers should explain the reason for their refusal and ensure they have evidence to back it up.

o Appeal An employee has 14 days to appeal against the decision. Ideally, any appeal hearing should be held by someone who was not involved in the first meeting.

This helps ensure the employee feels his or her application is being properly considered. In the case of a stalemate, ACAS’s arbitration services can be helpful.

A dissatisfied employee who considers the correct procedure has not been followed could bring a claim to an employment tribunal.

The tribunal can order an employer to reconsider its decision and make an award for up to eight weeks’ pay. A tribunal cannot question the commercial rationale, or business reasons behind an employer's decision to refuse a request.

In addition, employers must be careful not to indirectly discriminate against their employees on grounds such as sex, race or age. This is particularly relevant when it comes to dealing with mothers returning to work after their maternity leave and wanting to work flexibly.

o The pros and cons In challenging economic times, flexible working can help a business cut its costs while retaining talented employees.

Research has shown flexible working practices can be highly motivational, boosting morale and productivity and helping to attract high calibre recruits back into the workplace.

However, there are many sectors of our economy which are built on a traditional, nine-to-five office-based culture and any changes will need to be carefully communicated and managed to ensure full-time members of staff do not feel resentful, overburdened or disenfranchised.

o Contact: Richard White, Withy King, 01865 792300.

E-mail richard.white@withyking.co.uk Web: www.withyking.co.uk