Legal services: Flexible working

Due to the number of requests the Employment Team is receiving for initial legal advice regarding the Flexible Working Regulations I thought it may be helpful to publish in Gatelodge the article I prepared for the firm's Conference magazine in 2005.

Flexible Working came into force with the insertion of Sections 80F and 80I into the Employment Rights Act 1996.

The legislation does not give a right to flexible working but it does mean that any request for flexible working has to be properly considered by the employer. The statute is fleshed out by the rules contained in the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 and the Flexible Working (Procedural Requirements) Regulations 2002.

In response to the new statutory procedures, the Prison Service introduced a new concept into the terms and conditions of staff namely the idea of a Work Life Balance which was inserted into chapters 7 and 8 of PSO 8010 in May 2003. The rationale behind Work Life Balance was stated to be recognition that many staff:-

"have to balance their time at work against other priorities, including for example: caring responsibilities for children, elderly relatives or other dependants; a disability or condition which makes it difficult to cope with full-time working or traditional hours; a desire to study; travelling a long way to work each day, or wanting to create a better quality of life for themselves by working in a different way. In any of these situations, and in many others, Work-Life Balance may be able to help".

Unlike the statutory right to request flexible working which is subject to eligibility criteria, the right to apply under Work Life Balance is open to all staff. As this now creates two separate regimes one statutory, one under the staff terms and conditions, I will briefly examine each in turn.

Flexible Working

An employee is eligible if they are the parent (including adopted or foster parent) or spouse or partner of the parent of a child under 6 or, if disabled, under 18. The purpose of the application must be to care for the child which can include picking up from school or simply spending time with them. The important point to grasp is that if the application is granted then this will be a permanent change to the employee's contract (unless the parties have agreed otherwise), therefore you could not return to any previous pattern of working without further negotiation with the employer.

. The application must be in writing and must be dealt with by the employer in 28 days either by agreeing to the request or by holding a meeting to discuss it at which the employee can be accompanied by a companion worker.

. The employer's decision must be given within 14 days

. If a refusal, then the employee has 14 days to appeal.

. An appeal meeting should take place within 14 days of the notification of an appeal and again, 14 days are allowed for the outcome. The request may only be refused on one of the following grounds:-

i) The burden of additional costs,

(ii) Detrimental effect on ability to meet customer demand,

(iii) Inability to re-organise work among existing staff,

(iv) Inability to recruit additional staff,

(v) Detrimental impact on quality,

(vi) Detrimental impact on performance,

(vii) Insufficiency of work during the periods the employee proposes to work,

(viii) Planned structural changes A failure to follow procedure or to refuse on a ground other than one specifi ed above, would give rise to a claim in the Employment Tribunal for compensation as is just and equitable up to a maximum of 8 weeks pay (from 1 February 2006 max will be £2320).

If the employer refuses the right to be accompanied then a claim for 2 weeks pay can be made to an Employment Tribunal.

An employee cannot make more than one application in 12 months.

Work Life Balance

PSO 8010 emphasises thatWork Life Balance is not a legal right and can only be sought where the procedure has been adopted by that establishment. Even if an Establishment has not adopted Work Life Balance, there remains the statutory right to request flexible working outlined above. The critical difference between the two regimes is that Work Life Balance is time-limited and does not give rise to a permanent change of contractual terms. In implementing the policy, several governors have failed to appreciate this difference and have tried to time-limit the changes under a flexible working application. This problem may have arisen partly from the fact that both applications share a common application form which is simply headed "Work Life Balance". Therefore it is advisable to consider sending a covering letter which points out which regime the application is brought under.

A Work Life Balance application is meant to be considered by a three-person panel although there is a discretion to depart from this arrangement. Options open for consideration include compressed hours, weekend-only working, fixed rest days, flexitime, team-based self-rostering, job sharing, part-time working or working from home. It appears that the main pre-requisite of any application would be to retain the green/red hour proportions of 65:35. As the contractual right, similar to the statutory right, is limited to a right to request a change, there is little that can be done if the request is refused.

Want to apply?

The first question to ask yourself is do I qualify for flexible working under the Employment Rights Act 1996? If so you then ask, do I want to permanently alter my contractual terms? If "yes", then tick the relevant box on the front of the application form, if "no" or you do not qualify for fl exible working then your application will be dealt with as a Work Life Balance matter and will, if granted, be limited in time and subject to review. In order to have the best chance of having your request accepted, consider the impact your proposal would have on the green/red hours question and phrase your request in such a way as to make it difficult to refuse due to one of the eight grounds listed above. Be prepared to negotiate and to give a little ground at any meeting. The Prison Service cannot now simply ignore requests and watch out for any discrimination in the way your request is handled. One Governor refused a member's request on the grounds that he was not the main carer - obviously that governor had never changed a nappy in his life.

Bruce Henry

< Back to Legal Services