Creating a fairer Britain
The Equality Act came into force on 1 October 10. Some of the information on this page may be out of date.
Offering flexible working to new parents can be an effective way to retain employee skills after they become parents. Flexible approaches to work can help to create a workplace that employees want to return to after pregnancy and during parenthood, meaning that you continue to benefit from the experience of staff once they become parents.
Under the statutory procedure, an employee can request a change in their working patterns if they have worked for their employer for at least 26 weeks and have or expect to have responsibility for the upbringing of a child (including an adopted child) who is under 17 or under 18 if the child is disabled. The change in their working patterns may be a change to their hours of work, days of work or place of work. For example, they may ask to work part time, start work an hour later, or work from home.
Eligible employees include the mother, father, adoptive parent, guardian or foster carer of the child. An employee married to, living with, or the civil partner of that person (including same sex partner) is also eligible to request flexible working.
An application for flexible work to care for an adult can also be made if the person to be cared for is the employee’s spouse, partner, civil partner, relative or a person living at the same address as the employee.
The latest a request can be made is the day before the child’s 17th birthday (or 18th birthday if the child is disabled).
You may wish, however, to offer a more wide ranging flexible working policy that applies to all employees. Taking a flexible approach to where and when work is done is the best way to keep a motivated and skilled workforce, because flexibility is an important employment solution for many people at different points in their life cycle.
An employee can make only one request every 12 months (however, different rules apply for police officers).
Both employer and employee must follow a specified procedure with strict time limits. Time limits can be extended but only where this is agreed in writing between the employer and employee.
The employee initiates the procedure by making a formal, written request. The request should include details of the change in working patterns applied for and the date on which it is proposed the change should take effect. The employee should also explain what effect, if any, he or she thinks making the change would have on you and how, in his or her opinion, any such effect might be dealt with.
You may agree to the employee’s request to vary their working patterns without following the complete procedure. If so, you must write to the employee within 28 days of the employee’s request. The letter must set out the agreed changes to the employee’s working patterns and the date these are to commence.
In the absence of an immediate agreement to the employee’s request, you must arrange a meeting within 28 days to consider the employee’s request. An employee has the right to be accompanied by a work colleague or trade union official working for the same employer at the meeting.
You must consider the employee’s request seriously and can only refuse the request for one of the following prescribed business reasons:
You must notify the employee in writing of your decision within 14 days of the meeting.
The employee must be given the opportunity to appeal your decision if he or she does not agree with it. The employee must outline in writing the reasons why he or she thinks the decision is wrong within 14 days of the employer’s decision.
You must then organise an appeal meeting to consider the employee’s appeal. An employee has the right to be accompanied by a work colleague or trade union official working for the same employer at the appeal meeting.
You must notify the employee of your final decision within 14 days of the appeal meeting. If you agree to vary the employee’s working patterns, it should set out in writing what the agreed change is and when it is to start. If you do not agree to any change, you should provide the employee with your reasons.
Any changes put in place will be permanent unless the employer and employee agree otherwise. For example, the changes could be put in place for a three-month trial period and then reviewed.
An employee can bring a claim in an employment tribunal if you fail to follow the right to request procedure, refuse the application on a ground other than one of those specified or reject the application on the basis of incorrect facts.
There may be circumstances where a refusal to allow an employee to change their working patterns amounts to sex discrimination. For example, an insistence on full time working may give rise to a claim of indirect sex discrimination. In indirect sex discrimination claims an employment tribunal will scrutinise the employer’s reasons for refusing flexible work.
Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.
More detailed EHRC guidance for managers on flexibility and new ways to work [link to new working better guidance- Better Working Better Business: the managers guide to creating a flexible workplace, due to be launched in October]
Acas advice leaflet - The right to apply for flexible working, A short guide for employers, working parents and carers (England, Scotland and Wales)
Tiger website tool to help employees develop a proposal for flexible working (England, Scotland and Wales).
We also have further case studies from our Working Better guide on managing flexible working.