Key points
§  Add a note hereAlthough employees returning to work after maternity leave have no statutory right to do so on a part-time or job-sharing basis, recent amendments to the Employment Rights Act 1996 mean that the parents (or adoptive parents) of children under the age of six, or of disabled children under the age of 18, who have been continuously employed for 26 or more weeks, now have the right (without penalty) to apply to their employers for a more flexible pattern of working hours. In short, they have the right to seek to vary their contracts of employment so as to enable them to spend more time with their children. Their employers may not reject any such application 'out of hand', but must consider the implications and be prepared to offer sound business reasons if they decide to reject it. If, on the other hand, an employer agrees to accommodate the employee's request, the variation in the employee's terms and conditions will be permanent and irreversible.
§  Add a note hereIt is as well to point out that the right to apply for flexible working is restricted to parents, foster parents, etc who are 'employees' in the strict legal sense of the word; that is to say, to persons employed under contracts of employment or service. For the time being at least, agency workers (or 'temps'), who are supplied by employment agencies to client employers, have no right to request a more flexible pattern of working hours.
§  Add a note hereThe relevant legislation is to be found in sections 80F to 80I of the Employment Rights Act 1996 (as inserted by section 47 of the Employment Act 2002). The legislation, which came into force on 6 April 2003, is supported by the Flexible Working (Eligibility, Complaints & Remedies) Regulations 2002, and the Flexible Working (Procedural Requirements) Regulations 2002.
Add a note hereMeaning of 'flexible working'
§  Add a note hereSection 80F of the Employment Rights Act 1996 defines an application for 'flexible working' as meaning a request for a change in an employee's terms and conditions of employment involving staggered daily starting and finishing times (or flexi-time), shorter working hours, a shorter working week, a system of annualised hours, job sharing, term-time working, self-rostering, and so on. The legislation also allows that, in appropriate circumstances (given the nature of their work), employees may ask to work from home.
Add a note hereEligibility
§  Add a note hereHowever, the right to apply for a more flexible pattern of working hours (or more flexible working arrangements) is restricted to those individuals who are the parents, adopters, guardians or foster parents of children under the age of six (or 18, in the case of children who have been awarded a disability living allowance) or who are either married to or the partners of such persons.
§  Add a note hereAn employee who is the parent or guardian, etc of a child under the age of six (or 18) will not be eligible to submit an application for flexible working unless he or she:
a.     Add a note herehas been continuously employed by his or her employer for at least 26 weeks at the time the application is made;
b.    Add a note heresubmits that application at least two weeks before the child's sixth birthday (or the child's 18th birthday, if disabled);
c.     Add a note herehas or expects to have responsibility for the child's upbringing;
d.    Add a note herehas a genuine need to work more flexibly in order to have more time to care for the child; and
e.     Add a note herehas not submitted an earlier application to work flexibly within the previous 12 months.
Add a note hereContents of Employee's Application
§  Add a note hereApplications for flexible working must be submitted in writing and must:
a.     Add a note herestate that it is such an application;
b.    Add a note herespecify the change applied for and the date on which it is proposed the change should become effective;
c.     Add a note hereexplain what effect (if any) the employee thinks making the change applied for would have on his (or her) employer and how, in the employee's opinion, any such effect might be dealt with; and
d.    Add a note hereexplain his or her relationship to the child in question.
Add a note hereEmployees applying for flexible working should be given to understand that any resultant and agreed variation in their terms and conditions of employment will be permanent and irreversible. In other words, they may not later change their minds, even if no longer responsible for the care and upbringing of the child or children in question. To that end, they should consider the financial implications (eg, a drop in pay, if their applications are accepted).
Add a note hereProcedure
§  Add a note hereOn receipt of an employee's written application for flexible working, an employer has 28 days within which to accept that application or to arrange a meeting with the employee. The purpose of the meeting is to consider the employee's application and its implications, and to discuss any compromise arrangements. The employee has the right to be accompanied at the meeting by a working colleague of his or her own choosing, or by a shop steward or full-time trade union official. The meeting must be postponed if the employee is absent on holidays or sick leave, or for up to five days if the person nominated to accompany the employee at the meeting is temporarily unavailable.
§  Add a note hereWithin 14 days of the meeting, the employer must write to the employee either
o    Add a note hereagreeing to the proposed new work pattern and its start date; or
o    Add a note hereconfirming any compromise arrangement discussed and agreed at the initial meeting; or
o    Add a note hereexplaining in precise terms why his or her application has been rejected.
Add a note hereIf the application is rejected, the employee should be reminded of his or her right of appeal against that decision, and the procedure for doing so. An employee who chooses to appeal must do so in writing within 14 days of receiving the employer 's letter. The appeal must be heard within the next 14 days. At the appeal hearing, the employee again has the right to be accompanied by a fellow-employee of his or her own choosing, or by a shop steward or full-time trade union official. Within 14 days of the appeal hearing, the employer must convey his decision to the employee in writing. If the appeal has been upheld, the employer's letter must specify the contract variation agreed to and the date from which it is to take effect. If the employee's appeal has been dismissed, the letter must set out the grounds on which the dismissal is based.
Add a note hereGrounds for rejecting an application for flexible working
§  Add a note hereSection 80G of the Employment Rights Act 1996 states that an employer who has received an application for flexible working may only refuse the application for one or more of the following reasons:
a.     Add a note herethe burden of additional costs;
b.    Add a note heredetrimental effect on the ability to meet customer demand;
c.     Add a note hereinability to re-organise work among existing staff;
d.    Add a note hereinability to recruit additional staff;
e.     Add a note heredetrimental impact on quality or performance;
f.     Add a note hereinsufficiency of work during the periods the employee proposes to work;
g.    Add a note hereplanned structural changes; or
h.     Add a note heresuch other grounds as may be specified in regulations made by the Secretary of State; and must be prepared to explain those reasons before an employment tribunal should the need arise.
Add a note hereComplaints to an employment tribunal
§  Add a note hereAn employee whose application for more flexible working has been rejected out of hand (without the benefit either of an initial meeting or an appeal hearing), or if the employer has been dilatory in dealing with the employee's application (or has made it plain that he is not prepared to discuss it), or if the employee believes that the employer's dismissal of the application was based on grounds other than those listed in the preceding paragraph (eg, on grounds of sex, race, disability or trade union membership) may complain to an employment tribunal, but must do so within three months of the employer's rejection or refusal to entertain the application.
§  Add a note hereIf an employment tribunal finds such a complaint to be well-founded, it will make a declaration to that effect and may order the employer both to reconsider the employee's application and to pay such compensation to the employee as the tribunal considers to be just and equitable in all the circumstances (subject to a maximum of eight weeks' pay).
§  Add a note hereAn eligible employee who is be dismissed, selected for redundancy, victimised or subjected to any other detriment by his (or her) employer for presuming to exercise or assert his right to apply for flexible working, or for challenging or questioning any alleged infringement of those rights (whether before an employment tribunal or otherwise) may apply (yet again) to an employment tribunal and will be awarded substantial compensation if that complaint is upheld,