More flexible thinking

Peter Done, Managing director, Peninsula Business Services

As of 6 April 2007 the obligations placed on employers have expanded.

While any employee can submit a request to change their working arrangements there are only limited circumstances where they have a statutory right to make such a request. The employer is obliged to consider that request and respond to it.

Only those employed for at least 26 weeks can make such an application. They must be: the parent, adopter, guardian or foster parent of a child below the age of six - or a disabled child under the age of 18 - and have responsibility for the upbringing of the child; or have a responsibility for the care of a sick or disabled adult who is the employee's spouse, or civil partner, or near relative, or who lives at the same address as the employee.

Any changes in contractual terms will become permanent variations unless a temporary period is agreed at the outset. The application must be in writing, citing previous applications, specifying the change requested and the date proposed explaining what effect the employee thinks the change will have on the employer and how any such change might be dealt with. It must also explain how the employee meets the eligibility conditions.

Hold a meeting with the employee, normally within 28 days, to discuss the application - the employee has the right to be accompanied - and give a decision in writing within 14 days of that meeting. If you refuse the application, the letter must state how that decision has been made. The grounds include: additional costs; a detrimental effect on customer demand; inability to re-organise work among existing staff; and inability to recruit additional staff.

Employers can reject applications where the change will have an adverse effect on the business. However, you should be able to show, for example, you have looked at the possibility of job sharing, or have sounded out other employees about changing hours.

An employee is entitled to appeal, in writing within 14 days.

Hold a meeting with the employee to discuss the appeal within 14 days, unless, within that time period, you give written notification that the original decision has been overturned.

Within 14 days of the appeal meeting, give the employee written notice of the decision. If you dismiss it, state the grounds for the decision.

An employee who is refused can bring a Tribunal complaint where the employer has failed to comply with the regulations governing the handling of the application, if it is based on incorrect facts.

A finding that the right to request flexible working has been breached by the employer may result in an order requiring the employer to reconsider the application. In addition, the Tribunal may award compensation of up to eight weeks' pay (subject to the statutory cap on a week's pay - currently £310). If a Tribunal finds that an employee has been dismissed because they have made, or proposed to make, an application for flexible working, then that dismissal is likely to be automatically unfair.