[NOTE: Since this article was written the Government confirmed on 18 March 2011 that the right to request flexible working will not, after all, be extended to parents of any non-disabled child under 18, but will continue to apply to parents of children aged 16 and under.]
As you may be aware, the law on flexible working changes from 6 April 2011 so that anyone who is parent of a child aged under 18 has a statutory right to ask their employer for flexible working. Previously, the right was only available to parents of children aged 16 or under, or those with disabled children under 18.
As well as parents, the right also covers the parent’s spouse, civil partner or partner, as well as adopters, guardians and foster parents.
The change removes the ‘gap’ for children aged 17, and also links with the position on adults. Since 2007 employees who care for adults (i.e. over 18s) have had the right to request flexible working too. The employee must be either a relative or partner of the adult in question, or live at the same address as them. The definition of ‘relative’ is very wide and includes step-relatives and in-laws as well as adoptive relationships.
It is important to remember that flexible working only gives a right to request – it does not create an obligation on employers to grant the request. Employers need to give consideration to the request and follow the proper procedure, but if they have good reason to refuse, then they do not have to allow flexible working.
There are however some potential traps for unwary employers. Although an employer may be able to refuse a request under the flexible working rules, employees might have other additional rights to bear in mind as well. The classic example is the woman returning from maternity leave who not only has the right to request flexible working, but also protection against indirect discrimination. If an employer refuses her request, then they may need to be able to demonstrate that their refusal was justified as a proportionate means of achieving a legitimate aim.
Another area to watch out for in relation to flexible working is disability discrimination and this is an area which is likely to increase in significance in future. Following the landmark case of Coleman v Attridge Law, it is unlawful to discriminate against someone because of their association with a disabled person. This position is now dealt with by the Equality Act. What it means is that if someone makes a flexible working request because they want to care for their disabled relative, they will be protected against less favourable treatment.
A flexible working policy can be a good idea to ensure that requests are sent to the right person, are dealt with consistently and in the right timescales. Each request should be dealt with on its merits and it is a good idea to ensure that managers are aware of the law in this area to avoid some requests being refused outright without proper consideration.
Are you dealing with a flexible working issue? If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).