Equality and Human Rights Commission

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.

• Summary
• Who can apply
• The procedure
• Permanent change
• Tribunal claims
• Sex discrimination
• Model policy
• Relevant legislation
• Additional resources
• Business examples

Summary

• A flexible working request is a request by an employee to change their hours of work, days of work or place of work.
• Employees with at least 26 weeks continuous service have the statutory right to request flexible work.
• Under the statutory procedure they must have a child under 17 or, if disabled, under 18 and/or be caring for, or expect to care for a person over 18.
• Employers and employees may find it useful to put a flexible working policy in place. You may receive a request at any time, not only from new parents but also from mothers and fathers with older children. You may wish to offer a more wide ranging flexible working policy that applies to all employees.
• It is a good idea to discuss possible changes to working patterns with an employee before she goes on maternity leave and to encourage her to make any request before she returns to work, wherever possible. It can take several months to organise a change to an employee’s working patterns.
• When an employee makes a request for flexible working, both employer and employee must follow a specified procedure with strict time limits.
• You must consider the employee’s request seriously and can only refuse a request for one of the prescribed business reasons.
• It is a good idea, where you do not agree to the employee’s initial request, to discuss alternative options with the employee.
• There are circumstances where a refusal to allow an employee to change their working pattern may amount to sex discrimination. It is important that you consider a request carefully.

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Who can apply?

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.

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The statutory procedure

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:

• the burden of additional costs;
• detrimental effect on the 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;
• insufficient work during periods the employee wishes to work;
• planned structural changes.

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.

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Permanent change

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.

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Tribunal claims

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.

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Sex discrimination

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.

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Model policy

This toolkit contains a model flexible working policy and parental leave policy.

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Relevant legislation

• Employment Rights Act 1996
• Employment Relations Act 1999
• Employment Act 2002
• Work and Families Act 2006
• Flexible Working (Procedural Requirements) Regulations 2002
• Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002
• Sex Discrimination Act 1975

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.

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Additional resources

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). 

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Business examples

• Bannockburn Group of Riding for the Disabled
• Central Scotland Forest Trust
• Happy Ltd
• Martin Stockley Associates
• Preston Goldburn Solicitors
• The Gap

We also have further case studies from our Working Better guide on managing flexible working.

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