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New legislation allows certain employees greater flexibility in their working patterns, writes John Davies.

From 6 April 2003, workers with young children benefit from a new right to seek changes in their work patterns in order to enable them to spend more time at home with their children.

Under the new rules, working parents who have children under the age of six (or, in the case of disabled children,18) have the legal right to ask their employers for the right to vary their working conditions in some way. The variation they ask for is entirely up to them, but it could include working from home or working fixed shifts so as to ensure that they can be at home for their children at set times every day. Some of the main features of the new rules are summarised below.

Eligibility
A worker is entitled to seek a contract variation if they:

• are an employee and have been continuously employed by the employer for at least 26 weeks before the application is made
• are the mother, father, adopter, guardian or foster parent of the child, or are the spouse or ‘partner’ of one of the foregoing
• have responsibility for the upbringing of the child and are making the application in order to enable them to help care for the child.

(A ‘partner’ is defined as someone who lives with the child and its mother, father, adopter, guardian or foster parent in an ‘enduring family relationship’.)

Application Procedure
The employee must make their application in writing either on a new pro-forma form (Form FW(A)) produced by the DTI, or in a letter. The application must state clearly what variation the employee is looking for and also explain how any adverse effects of the variation might be mitigated by the employer. On receipt of the application, the employer has 28 days to hold a meeting with the employee to discuss the application.

The Employer’s Decision
The employer has a duty to consider any application seriously and must give their response in writing within 14 days of the meeting. They may only refuse the employee’s request on one of a number of prescribed business grounds. These are that:

• the employer would be burdened with additional costs
• there would be a detrimental effect on the employer’s ability to meet customer demand
• the employer would be unable to reorganise work among existing staff
• the employer would be unable to recruit additional staff
• there would be a detrimental impact on the quality of the firm’s output
• there would be a detrimental impact on performance
• there would be insufficient work available during the times that the employee proposes to work
• planned structural changes.

In communicating their rejection of the application, the employer must give sufficient explanation of their reasoning. If they agree to the request, then the employee’s new working pattern will supersede their existing contractual agreement – it becomes a permanent feature which continues even after the child outgrows the initial age limits.

Appeal Against a Refusal
An employee who is dissatisfied by an employer’s refusal has 14 days in which to appeal. This must be done in writing and state the grounds for the appeal. Where an appeal is made, the employer has 14 days in which to hold an appeal meeting. The employer must then inform the employee of their final decision within a further 14 days.

These deadlines can be extended by mutual agreement. In the absence of such agreement, employers should be careful to follow them assiduously, since failure to follow the set procedure is one ground on which a dissatisfied employee can complain to ACAS or an employment tribunal. The other ground for complaint is where the decision by an employer to refuse an application is based on incorrect facts.

If an employment tribunal gets involved and finds against the employer, it can order the employer to reconsider the application afresh or to pay compensation to the employee – this is set at a maximum of eight weeks’ pay.

John Davies – Head of Business Law, ACCA

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