Working parents
A flexible approach
The way we work is changing. Fixed patterns are giving way to flexible employment, with part-time, flexi-time and job-sharing all becoming more common. Campaigning charity Working Families looks at the options
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Types of f lexible working Below are listed some common types of flexible working. However, flexible working is not limited to these types and could combine several different styles of working. For example, you could be a part-time worker, working flexi-time, with some time spent working at home.
Part-time working |
Part-time working simply means working fewer hours than the standard working week. The law states that part-time workers must not be treated less favourably just because they are part-time, for example they cannot be excluded from pension schemes or paid a lower hourly rate. Note that although there is no legal definition of part-time work, benefits and tax credits do have minimum and maximum hours.
Flexi-time |
Flexi-time allows you to vary your hours, although there is usually a “core” time where you have to work, and there is usually an expected number of working hours a day. For example, if the core time is 10am-4pm, you could work 8am-4pm, 9am-5pm or 10am-6pm. If you worked 8am-6pm one day you could bank the extra two hours and work two hours less another day. Many schemes allow you to bank hours over a long period and take whole or half days off.
Job-sharing
Job-sharing is where a job is split, usually between two people. For example, one person might do mornings and another afternoons or one could do Mondays and Tuesdays and the other Wednesdays, Thursdays and Fridays. Sometimes there is a period when both job-sharers are in the office to liaise and handover.
Term-time working
This allows you to work full or part-time during the school term only, while taking unpaid leave in the holidays. Your pay may be averaged out over the year.
School hours working
Where you work school hours only so you can drop the children off and pick them up.
Compressed hours
You work more hours a day, but fewer days a week.
V-Time
This means a voluntary reduction in hours, maybe for an agreed period of time.
Working from home
Also called teleworking or remote working. You can work all or part of the week at home. Working from home is not a substitute for childcare for young children, although it can still be useful as it cuts down on commuting time. Your employer is still responsible for your health and safety when working at home so can insist that you have the correct equipment and childcare in place.
What is right for you?
Before you decide which pattern of working is best for you, think about how it will affect your finances and career. If you reduce your hours, will you still have enough income to live off? How will it affect your travelling and childcare costs? Do you need to fit around a partner’s shifts or fit in with childcare? Do you need the change to be permanent or is it just for a few months? Would it be best if both you and your partner sought flexible hours?
As well as this, you need to consider what is possible in your job. Do you need to be available at certain times? Do you need to be physically present at your place of work to do your job or could part of it be done from home?
You also need to think about the effect it will have on your employer. A request under the right to request flexible working must state what effect the proposed working pattern will have and how you can avoid it having a negative effect on the business. It is also good to be ready to point out how it will help your employer, for example doing some work from home would free up desk space, allow you to work on more involved projects, concentrate without distraction, and so on.
The law
Although there is no absolute right to work part-time, there are two pieces of legislation that can help you to get flexible working. The Employment Rights Act 2002 introduced the right to request flexible working procedures in April 2003. It gives certain employees with childcare responsibilities or caring for adults who are in need of care the right to ask to work flexibly in their current job and employers the duty to consider this seriously.
The right to request is available to both men and women, and covers the hours an employee works, the times s/he is required to work and the place of work (ie home or a workplace). It is important to understand that a change granted under the right to request is permanent – if you want a temporary change only this must be specifically negotiated with your employer.
The Sex Discrimination Act 1975 is the second relevant piece of legislation. This Act prohibits both direct and indirect sex discrimination. Women have successfully argued that making them work full-time (or inflexible hours) without justification is indirect sex discrimination, because they are more likely than men to have childcare responsibilities. The same principles should apply to other caring responsibilities. Direct discrimination is when an employer treats the sexes differently, for instance by allowing female staff to work flexibly, but not male workers.
In addition, you should always check to see if your contract of employment and/or company policy allow you to work flexibly. If they do, then you ought to point this out to your employer when making your request. If there is a right to work flexibly in your contract or in the company policy, and you are not allowed to work flexibly, then in addition to the rights below, you may be able to claim your employer is in breach of contract.
Right to request for carers of children
In order to qualify for this right you must:
- Have a child under six years old, or under 18 years old if the child receives Disability Living Allowance (DLA)
- Make the request before the child’s sixth (or 18th) birthday
- Be responsible for the child and the reason for the request must be for you to care for the child
- Be an employee and have worked for your employer for at least 26 weeks when you make the request
- You cannot be an agency worker or a member of the armed forces
- You cannot have made an another application under the same right during the previous year.
Making the request
Your request must contain the following to be covered by the legislation:
- Be in writing and dated. This includes e-mails and faxes
- State that it is an application under the statutory right to request a contract variation in relation to flexible working under ERA 1996, s80F
- Confirm that you have responsibility for the upbringing of the child/are caring for an adult, that you are making the request to be able to care for the child/adult and state your relationship to the child/adult
- State what working pattern you are applying for
- State what date you want the change to start
- Explain what, if any, effect the change would have on your employer and how this could be dealt with
- State whether you have made an application before and if so when (you are only allowed to make one application a year).
The easiest way of making the request is to use a standard form, which you can get from the Department of Trade and Industry website (http://www.dti. gov.uk/employment/workandfamilies/ flexible-working/flexforms/index_print. html.) However, you do not have to use this form and some companies have their own versions.
After the request is lodged
Your employer must agree to your request and tell you in writing or arrange a meeting with you to discuss your request, within 28 days of receiving it. This time limit can be extended either if you agree to an extension or if the person who has to make the decision is away on leave or is ill.
You have the right to be accompanied to the meeting by a worker employed by the same employer (this can be a trade union representative as long as they work for your employer too). Fourteen days after the meeting, your employer must give you a decision in writing. S/he may grant your request; refuse to grant your request, but permit an agreed compromise; or refuse your request altogether.
A request can only be refused on one or more of the permitted reasons. These are:
- Burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods you propose to work
- Planned structural changes.
As well as stating one of the permitted reasons, your employer should explain how they think the reason applies to your circumstances. So, they cannot just say “I reject your request because of the burden of additional costs“, they must follow that up with some more detail on how it applies to your particular request. A refusal must be based on correct facts and the application should be given genuine consideration, for example the employer should not make up its mind in advance. If your employer does not give you reasons in writing or does not explain them, you should ask him/her to. Knowing the reasons you have been turned down will help you to appeal, if you want.
You have 14 days from being given the written reasons to appeal the decision. If you do appeal your employer must organise another meeting 14 days after you have made your appeal in writing (unless s/he decides to grant it). You can appeal on any grounds. For example, your employer may not have taken something into account when he/she made the decision or you may want to challenge the business reason s/he has given you.
Fourteen days after the appeal meeting your employer must tell you whether or not your appeal was upheld. Again, this must be in writing and must give reasons. If your appeal is not upheld and you want to take matters further, you may be able to lodge an Employment Tribunal complaint. However, first it will usually be advisable to lodge a grievance.
An Employment Tribunal complaint under the right to request can only be made on certain grounds. These include:
- The employer has not followed the procedure
- The employer has refused the application for a reason not specified in the Employment Relations Act (see above)
- The employer’s decision to refuse was based on incorrect facts.
Note that you cannot make a complaint because you disagree with the reason stated by your employer. However, in that case you may be able to make a sex discrimination complaint (see below).
 Working from home is not a substitute for childcare for young children, although it can still be useful as it cuts down on commuting |
The compensation which can be awarded is a maximum of eight weeks’ wages. A week’s wages is currently capped at £310, so the maximum award is £2,480. The employer can also be ordered to reconsider its decision, but the Tribunal cannot order the employer to grant the request. Compensation for claims brought under the Sex Discrimination Act can be much higher than this so you should see if you also have a sex discrimination claim (see below).
Indirect sex discrimination
It has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination.
In law, indirect discrimination occurs when:
- Your employer requires something or imposes a working practice on male and female employees, for example full-time working or shift working, which puts women at a particular disadvantage compared to men (for example, because they bear the main burden of caring responsibilities).
- You suffer a disadvantage as a result of not being able to meet the requirement or practice. In flexible work cases, this will be the difficulty of combining the required work hours with your childcare responsibilities. This does not mean the hours are impossible to work but it is advisable to show why you need the hours requested (for example the affordability or availability of childcare from a particular nursery or family members, how much time you think your child should be in your care and the serious consequences of refusal in that you may have to leave your job or suffer stress and exhaustion if you continue).
- And the requirement or practice cannot be justified by your employer as genuinely necessary for the business. Assessing this means the tribunal will examine how badly you are disadvantaged by the requirement, so the evidence demonstrating this will be useful here too.
Unlike the right to request, there is no definitive list of genuine business reasons. Tribunals look at the individual circumstances of each case, although some general principles have been developed by the courts in flexible working cases. These mean that the employer:
- Must show s/he has examined thoroughly whether the change is feasible and what problems insisting on say full-time work will cause you compared to how essential it is for the business’ operation. Inconvenience will not normally be a good reason, nor added costs, if this is the only reason for rejecting the change.
- Has considered the alternative work pattern you suggested and possibly any others which might help you.
- Must not have relied on general isations for rejecting your proposal, for example, an assumption that flexible hours would not meet any need the business has for continuity or a blanket policy (for example, no flexible hours allowed as this would set a precedent) but can show your particular job must be done as the employer requires.
Men cannot claim indirect sex discrimination. However, a married man or a man in a civil partnership might be able to claim indirect marital discrimination, if without justification he was not permitted to work flexibly, and suffered harm as a result. Also, men, whether married or not, can claim direct sex discrimination in certain circumstances.
Direct sex discrimination
If a woman would be offered a flexible working pattern, it would be direct sex discrimination to not offer a man in the same situation that working pattern. The reverse is also true, that is, if only men are allowed to work flexibly a woman would have a direct sex discrimination case.
Rights of part-timers
The Part time Workers Regulations 2000 (PTW Regs) give part-timers the right not to be treated less favourably than full-timers, unless such treatment can be justified on objective grounds. For example a part-timer must not be paid less than a full-timer pro rata, or be excluded from a pension scheme or from training. If you change from working full-time to part-time, you must not be treated less favourably than when you were full-time. However, it is important to note that the Regulations do not require an employer to allow flexible working.
Apart from rights under the PTW Regs, flexible workers may be entitled to claim under the Equal Pay Act 1970 if they do not receive equal pay. For example if they miss out under a bonus scheme (for example, because they cannot work certain shifts due to caring responsibilities), or do not receive the same rights to work-related benefits such as health insurance, a claim may be possible. Equal pay is a complex area and you should seek legal advice if you think you may have a claim.
Negotiation
Although the law may be able to help you in relation to flexible working, it is obviously better to try to reach a negotiated agreement with your employer. It is important to be careful about how and when you approach your employer in case you cannot reach agreement and decide to take matters to an employment tribunal.
With this in mind it is useful to take advice before approaching your employer, to make a note of all conversations with them and to put things in writing wherever possible. Try to suggest solutions to any of the problems they might raise. Gather information about people who do similar jobs to yours on a flexible basis. You need to think carefully about your situation and try to put forward the best proposal you can of how your new arrangement would work.
Consider:
- Can the work be organised so the change in hours can be managed? Can you offer to be flexible in certain ways, for example, contactable by phone when not at work?
- Can any colleagues confirm the planned new pattern is workable?
- Is a similar arrangement in place for anyone else or has one been in the recent past or do other organisations in the sector have flexible working?
- Are there any positive advantages for your employer in the change?
- You should look at your contract of employment to see if there are any provisions that allow for flexible working. You could also contact your human resources department to ask what your employer’s policy is on flexible working and whether any other employees are working part-time.
If it is part of your company’s policy or contract to allow you to work flexibly or if other employees are allowed to work parttime then you should point this out when you make your request. If you are having difficulty getting your employer to agree to your request you may also wish to consider requesting a trial period of flexible working. It can be more difficult for an employer to refuse a shortterm arrangement.
Make sure that you do your best to provide your employer with any information s/he needs to assess your request. Even if your case appears very strong you will still lose if your employer can show that it is essential for the job to be done in a particular way. However, many of the reasons employers have given for refusing flexible working have not been considered justifiable by employment tribunals.
For more information, contact:
Working Families
1-3 Berry St, London, EC1V 0AA
Tel: 0800 013 0313
Website: www.workingfamilies.org.uk
E-mail: info@workingfamilies.org.uk
