THE
RIGHT
TO
REQUEST
An employers’ guide to
implementing the
flexible working legislation
THE RIGHT TO REQUEST 1
CONTENTS
Introduction
2
Flexible working: legal framework
3
Guidance for employers
Ground rules for flexible working
Flexible working options
Applications
Schedule
9
10
11
12
16
Linklaters/PARENTS AT WORK legislation survey
19
Sources of further advice and information
25
2 THE RIGHT TO REQUEST
Introduction
PARENTS AT WORK and Linklaters have produced this topical guide to support employers as they meet the
challenge of the new Employment Rights legislation. As our original research shows (Appendix A), employers
are concerned that the new legal process will be more unwieldy than their current practice on handling
flexible working requests. They wish to comply with the legislation, whilst continuing to offer the range of
working options that have proved successful for their businesses and their employees.
So, here is a user-friendly analysis of the new legislation, accompanied by practical advice on how to
implement it and, indeed, a wider flexible working policy. These are illustrated by case studies of current
successful practice and a survey of leading organisations’ response to the legislation.
We welcome this legislation, and hope that this guide will help employers to see it as an opportunity to
reconsider creative flexible solutions, which will improve their employees’ lives, as well as the way they run
their businesses.
Raymond Jeffers and Simon Kerr-Davis
Sarah Jackson
Chief Executive,
PARENTS AT WORK
THE RIGHT TO REQUEST 3
FLEXIBLE WORKING: LEGAL FRAMEWORK
From 6 April 2003 parents of children aged under six
or of disabled children aged under 18 will have a
statutory right to apply to work flexibly. Employers
will have a duty to consider applications seriously. In
this section we set out the basic legal framework
within which the new right will operate. We also
identify key issues which employers will need to
address when drafting and operating flexible
working policies. We also indicate those areas where
the legislation is unclear and where clarification
from either the DTI or case law will be required: the
aim being to suggest methods of addressing these
issues without becoming a test case!
1 Basic principles
The new right will allow “qualifying employees” (see
below) to request a change to terms and conditions
of employment relating to hours of, times of, and
place of work, if this is for the purpose of enabling
them to care for a child with whom a specified
relationship exists. It is important to note that, once
agreed, any change will be permanent.
As the DTI puts it, the new law does “not provide an
automatic right to work flexibly” but “employers
will have a statutory duty to consider their
applications seriously”.
Qualifying employees will have the right:
to apply to work flexibly;
to have their applications considered seriously in
accordance with the set procedure (see below)
and refused only where there is a clear business
ground for doing so;
to have a companion at meetings with the
employer to discuss the application;
to have a written explanation explaining why an
application is refused;
to appeal against an employer’s decision to refuse
an application;
to take a complaint to a tribunal in certain
circumstances.
Employers will have the right:
to reject an application on specified business
grounds;
to seek the employee’s agreement to extend
timescales where necessary;
to treat an application as having been withdrawn
in certain circumstances.
2 Where are the new provisions set
out?
The legal right was introduced in the Employment
Act 2002. This inserted a new part 8A, S80F-I into
the Employment Rights Act 1996. The details were
added in two sets of regulations: The Flexible
Working (Procedural Requirements) Regulations 2002
and The Flexible Working (Eligibility, Complaints and
Remedies) Regulations 2002 (“The Remedies
Regulations”). The DTI has published a guide to
flexible working, together with a set of “best
practice” forms to use when
requesting/granting/refusing flexible working. See
http://www.dti.gov.uk/er/review.htm.
3 Who can apply?
To be eligible to make a request under the new right
an individual must:
(i) be an employee;
(ii) have worked with their employer continuously
for 26 weeks at the date the application is
made;
(iii) make the request in relation to a child under
six (or under 18 in the case of a disabled child)
no later than two weeks before the child’s 6th
/18th birthday;
(iv) have or expect to have responsibility for the
child’s upbringing;
(v) be making the application to enable him/her to
care for the child;
(vi) not be an agency worker;
(vii) not be a member of the Armed Forces; and
(viii) not have made another application to work
flexibly under the right during the past 12
months.
The right is conferred on employees and does not
cover broader categories of worker, such as
independent contractors or agency workers.
The condition that an employee cannot reapply
within a 12 month period also has some interesting
consequences: where a first request to work flexibly
is granted by an employer but the employee’s
circumstances change within 12 months of the first
application being made, the employee cannot make
a second application to reflect the changed
circumstances. If the employee does make a second
application within a 12 month period, then the
4 THE RIGHT TO REQUEST
employer would be entitled to reject the application
on the grounds that the employee is not eligible to
make the second request. The employer could of
course consider the second application if it chose to,
but is not obliged to do so under the legislation.
4 When must the application be
made?
The application must be made no later than two
weeks before the child’s 6th birthday or 18th
birthday in the case of a disabled child. The age
cut-off was chosen on the grounds that it is the
parents of children under school age, those fitting in
with new school routines and parents of disabled
children who are under particular pressure when
attempting to combine family and work
commitments.
5 What form should the application
take?
There is no prescribed application form, although
the DTI has produced “best practice” forms to cover
applications, grants and refusals of flexible working
requests. However, the legislation does set out
various requirements. The application must:
(i) state that it is an application made under the
statutory right to request flexible working;
(ii) specify the change applied for and the date on
which it is proposed the change should become
effective;
(iii) explain what effect, if any, the employee
thinks making the change applied for would
have on his/her employer and how, in his/her
opinion, any such effect might be dealt with.
This puts the onus on the employee to ensure
that the application is carefully thought out.
The DTI guidance states that this doesn’t mean
that an employee is expected to know every
factor that might influence the employer’s
decision, but he/she should show that factors
that could influence the employer’s decision
have been considered;
(iv) explain how, in respect of the child concerned,
the employee meets the conditions as to
relationship discussed in the next section;
(v) an application must be made in writing. Here
“in writing” includes “writing delivered by
means of electronic communication”, so
applications sent by fax or e-mail are
acceptable;
(vi) the application must be dated; and
(vii) an application must state whether a previous
application has been made by the employee to
the employer and, if so, when. This should help
employers to avoid repeat applications. An
employee may not make a further application
to the same employer within 12 months.
These requirements are set out in S80F(2) ERA and
in the Remedies Regulations.
6 The relationship test
To make an application an employee must show that
he/she has a qualifying relationship with the child in
respect of whom the application is made. An
employee must also have, or expect to have,
responsibility for the upbringing of the child.
The qualifying relationships are that the employee
must be either:
(i) the mother, father, adopter, guardian or foster
parent of the child; or
(ii) married to, or the partner of, the child’s mother,
father, adopter, guardian or foster parent.
The definitions in the legislation make these
requirements difficult to understand. “Foster
parent” and “guardian” have technical meanings
that can be found in Regulation 2(1) of the Remedies
Regulations. An “adopter” is “a person who has been
matched with a child for adoption”. “Partner” is
defined as somebody who lives with the child and
the mother, father, adopter, guardian or foster
parent “in an enduring family relationship”. This can
be somebody of the same sex. But a “partner”
cannot be a parent, grandparent, sister, brother,
aunt or uncle of the mother, father, adopter,
guardian or foster parent, whether of full or half
blood. In the case of an adopted person, this applies
to such as those relationships as would exist but for
the adoption and includes the relationship of a child
with his adoptive, or former adoptive, parents but
not other adoptive relationships.
The words “lives with the child” in the definition of
partner cause particular difficulty. An employee who
is a mother, father, adopter, guardian or foster
parent of the child (“legal parent”) need not “live
with the child”. By contrast, someone who is a
partner of a legal parent must “live with the child”
THE RIGHT TO REQUEST 5
and the legal parent. But “live with the child” is not
required if married to the legal parent. One can
foresee disputes over the concept of “live with the
child”. For example, take a partner who lives with a
child’s mother but the child is split between two
parents. If the child is, say, with the mother one day
a week or one week in two is the “living”
requirement met? They must also be in “an enduring
family relationship”. Are they? Guidance from the
DTI would be helpful.
Employers may be concerned over the potential for
abuse by employees. For example, there is no right
or procedure allowing an employer to verify whether
an employee satisfies the relationship conditions, or
has “responsibility for the upbringing of the child”,
or that the purpose in applying for flexible working
is “to enable the applicant to care for the child”.
There may be a technical argument that no valid
application has been received as the employee has
failed to show that he is a “qualifying employee”,
but employers are advised to take a liberal
interpretation of the relationship qualification until
such time as further guidance is released by the DTI.
7 What changes may be requested?
Eligible employees will be able to request:
(i) a change to the hours they work;
(ii) a change to the times when they are required
to work; or
(iii) to work from home.
The DTI has explained that this covers annualised
hours, compressed hours, flexitime, home working,
job-sharing, self-rostering, shift working, staggered
hours and term-time working. Parents are expected
to request a variety of options, from compressing a
five-day week into three or four days flexitime to
home working. Further information can be found at
www.dti.gov.uk/work-lifebalance.
8 How will the procedure work?
In simple terms, there is a 6-stage procedure that
must be followed:
(i) the employee must make a considered
application in writing. DTI guidance advises
employees to work on the basis that the
procedure will take about 14 weeks to
complete if there are no particular problems;
(ii) the employer must arrange to meet with the
employee within 28 days to discuss the
proposition. The employee is entitled to bring a
fellow worker employed by the same employer
as a companion to this meeting. The companion
can confer with the applying employee and
address the meeting but may not answer
questions on behalf of the employee. The
employer must ensure that the meeting is held
at a time and place that is convenient to both
parties. DTI guidance suggests that a mother
who is about to return to work from maternity
leave might find it difficult to meet at the
workplace. Alternative venues should be
discussed. If the companion is unable to attend
the meeting on the date arranged, the
employee can seek to rearrange the meeting at
a mutually convenient time within seven days
of the date of the initially proposed meeting;
(iii) within 14 days of the meeting, the employer
must write to the employee either to agree a
new work pattern and confirm a start date, or
provide clear business grounds as to why the
application cannot be accepted and the reason
why the ground(s) applies in the circumstances;
(iv) the employee then has a right to appeal within
14 days of such notification. The appeal must
give grounds;
(v) the appeal, at which the employee may again
bring a companion fellow worker, is to be heard
within a further 14 days;
(vi) the notice of the appeal decision is to be given
in writing within 14 days of the appeal hearing.
The Regulations allow the parties to agree to extend
these time limits. This is to cover circumstances
where it is difficult for one party to follow a certain
part of the procedure. For example, during the
meeting an alternative working pattern might be
identified but further information may be needed to
ensure that it is workable. It may not be possible to
obtain this within the two weeks the employer has
to notify the employee of its decision. The employer
must make a written record of any agreement.
There is an automatic extension to the time limits
where an application is sent to the manager who
will deal with the application and the manager is
absent from work due to leave or illness. This
applies to the initial 28-day period the employer has
to meet with the employee to consider the request.
The time period will start to run either on the day
of the manager’s return or 28 days after the
application is made, whichever is the sooner.
6 THE RIGHT TO REQUEST
The legislation provides that a chosen companion
must be a worker employed by the same employer.
DTI guidance suggests that it can be valuable to allow
a companion from outside the organisation to
attend, although there is no obligation for the
employer to permit this.
9 Grounds for refusal
Employers are under a statutory duty to consider
applications seriously and to notify an employee of
acceptance or rejection of the application.
Rejection can be made only on one or more of the
following grounds:
(i) the burden of additional costs;
(ii) detrimental effect on ability to meet customer
demand;
(iii) inability to reorganise 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; and
(ix) such other grounds as the Secretary of State may
specify by regulations (none proposed to date).
The scope of these reasons has been the subject of
some controversy, with views being expressed both
that the list is too limited and that the list is too
wide. Much will turn on the application of these
reasons in practice and how widely they are actually
applied. On the face of it, these reasons seem to
provide reasonable protection to the employer,
particularly the small employer seeking to operate a
business with minimal disruption, while also allowing
an employee to benefit from opportunities for
flexibility which may be present within that
business. Again this goes to the heart of the matter
that the right is to request to work flexibly, and is
not an unfettered right to work flexibly.
proposing to exercise) the procedural rights,
bringing proceedings or alleging the existence of any
circumstances which would constitute a ground for
bringing such proceedings (see section 47(D) and
section 104(C) ERA).
An employee also has a right to be accompanied by
a fellow worker at the various meetings held to
deal with the flexible working request under the
Flexible Working (Procedural Requirements)
Regulations 2002. A complaint to a tribunal may be
made if the employer fails (or threatens to fail) to
permit such a companion to attend or address the
meeting or to confer with the employee during the
meeting.
There are three grounds for making a tribunal claim.
The wording of the provisions is surprisingly complex
and has already given rise to conflicting
interpretation among commentators. The following
is our interpretation of the position. Under ERA
Section 80(H) a complaint can be one of three types:
the employer did not deal with the application as
required by the Procedure Regulations (or the
Remedies Regulations);
the employer did not refuse the application on
one of the grounds set out in the legislation (see
80 G(1)(b)); or
the decision by the employer to reject the
application was based on incorrect facts.
10 How are employees with the
right to request flexible work
protected?
In other words, an employer can be brought to
account if it did not follow the required procedure,
it did not reject an application on one of the
specified business grounds (for refusal see section 9
above), or, where the application was rejected on
one of the specified grounds, this decision was
based on “incorrect facts”. The Government
believes that limiting the grounds for complaining in
this way will mean that tribunals cannot question
“the commercial validity of the employer’s decision”
and rule on the merits of the employer’s decision.
However, it may be that the relationship between
the second and third grounds of complaint will
provide an opening to question the underlying
commercial basis for the reason for refusal. Much
will depend on the tribunals’ willingness to
investigate the facts upon which a refusal is based
and whether these support the given reason for the
refusal.
Employees must not be subjected to detriment or
dismissal by reason of making (or proposing to make)
an application for flexible working, exercising (or
There are a number of important limitations on
making any of the three complaints described:
(i) no complaint can be made in respect of an
THE RIGHT TO REQUEST 7
application which has been disposed of by
agreement or withdrawn;
(ii) no complaint can be made until either the
employer notifies the employee of the decision
to reject the application on appeal or commits
a breach of one of the specified procedural
obligations. The Remedies Regulations state
these are: failure to hold the initial meeting or
appeal, or the failure to notify a decision at
the initial meeting stage or the appeal stage;
(iii) a complaint must be made within three months
of the “relevant date” or within such further
period as the tribunal allows when satisfied it
was not reasonably practicable for the
complaint to be presented within three
months. The “relevant date” is the date on
which the employee was notified of the
decision or, if notification did not take place,
the “relevant date” is when the breach
concerned was committed.
11 Remedies
The successful employee may gain a combination of
three remedies:
(i) a declaration that the complaint was wellfounded;
(ii) an order for re-consideration of the
application; or
(iii) an award of compensation to be paid by the
employer.
Tribunals will be able to order such compensation as
is “considered just and equitable in all the
circumstances”. However, this is capped at a
maximum of eight weeks’ pay. A week’s pay is to be
calculated on the same basis as the unfair dismissal
basic award (i.e. currently capped at £260 per
week). The maximum award will therefore be
£2,080. There is no power to order an employer to
implement a flexible working arrangement.
result of childcare commitments have sought, and
found, protection under the sex discrimination
legislation. While this survey does not intend to
provide an exhaustive summary of the existing rights
under the Sex Discrimination Act 1975 (“SDA”), the
following points are significant and will have direct
relevance when considering whether or not to grant
a flexible working request:
there is no service requirement in order to bring a
claim under the SDA. An employee who submits a
flexible working request but has less than 26
weeks’ continuous service could claim under the
SDA although he/she does not qualify for
protection under the new right;
there is no cap on compensation awards for a
claim under the SDA. It is important to remember
that an employee could claim the relatively
modest compensation available under the new
right and uncapped compensation on the grounds
that he/she had been discriminated against on
the grounds of sex. Subject to being able to
demonstrate loss and the employee’s duty to
mitigate, an employee could be awarded
substantial damages, including damages for injury
to feelings;
the test that an employer has to satisfy under the
SDA to objectively justify action that would
otherwise be indirectly discriminatory is generally
more difficult to satisfy as it is an objective test.
Under the new right an employer will be able to
refuse the request, provided it considers that one
of the broad statutory reasons applies and it
provides sufficient explanation for this view and it
is based on correct facts.
12 Relationship with discrimination
legislation
For a claim of indirect discrimination the basic test
in employment cases under s1 of the SDA is:
an employer discriminates against a woman if … he
applies to her a provision, criterion or practice
which he applies equally to a man, but –
(i) which is such that it would be to the detriment
of a considerably larger proportion of women
than men, and
(ii) which he cannot show to be justifiable
irrespective of the sex of the person to whom it
is applied, and
(iii) which is to her detriment.
Although the compensation available under the new
right is very limited, the limit may not assist if other
remedies are open to the employee. Some legal
protection is already available to employees seeking
to work flexibly. Those seeking to work flexibly as a
An employer’s ability to objectively justify its
decision in cases where a request for flexible
working is rejected will be a particularly significant
issue. It would be possible for an employer to refuse
a request for flexible working on one of the business
8 THE RIGHT TO REQUEST
grounds, but for this same reason not to constitute
an objective justification under the SDA legislation.
This is because the reason given is the subjective
view of this employer and may itself be tainted by a
sex bias. For example, a requirement that all fund
managers (male and female) work full time because
clients expect their fund manager to be available
during business hours may be difficult to objectively
justify under the SDA, but it may be an acceptable
business reason under the flexible working
legislation to reject a request. The employer might
be able to rely on grounds (i), (ii), (iii), (iv) and (vi)
- in section 9 - in this example to reject a request
for flexible working.
Much will depend on the approach which tribunals
choose to adopt and how closely they endeavour to
align the two tests. In the case of Georgiou v
Colman Coyle (EAT535/00) the Employment Appeals
Tribunal considered the question of objective
justification when a solicitor was denied a request
to work partly from home, due to childcare needs,
and claimed sex discrimination. The EAT held that
the employer’s decision to refuse the request was
objectively justified. The circumstances were very
particular in that it was a small office where client
service required that a lawyer in Ms Georgiou’s area
of specialisation should be available to meet clients;
and the efficiency of her work would be adversely
affected by the need to transport large amounts of
documentation which could not be faxed or emailed. In this case there was no indirect sex
discrimination.
These grounds which succeeded when arguing
objective justification would also fall squarely
within the permitted business reasons for refusal
under the new right to request flexible working. This
may show the beginnings of an alignment between
the concepts of the statutory reason for refusal and
objective justification under the SDA. However, only
time will tell whether the tribunals continue to
harmonize the two concepts.
Where issues of childcare are concerned, men are
likely to find it very difficult to succeed in a claim
of indirect sex discrimination. In almost all
workforces any policy which conflicts with childcare
arrangements will be to the detriment of a
considerably larger proportion of women rather than
men and an indirect sex discrimination claim by a
man in this situation would therefore fail. For men,
the more likely claim would be a direct
discrimination claim because the employer has
granted a flexible working request to a woman but
refused a similar application from a man. Direct
discrimination cannot be objectively justified. If an
employee can demonstrate that a woman’s request
for flexible working in the same circumstances
would have been granted, then he would succeed in
his claim.
13 Conclusion
The new right to request flexible working provides a
formal method for an employee to make a request
for flexible working patterns and an employer to
seriously consider that request. The process is
complicated and prescriptive and does require both
parties to follow a detailed procedure. The financial
penalties against an employer for failing to meet its
obligations are, however, very limited.
An employee whose request to work flexibly is
rejected may still choose to take action against the
employer under the Sex Discrimination Act as well
as, or instead of, under the new right to request
legislation. The aggrieved employee would be able
to obtain a higher level of damages under the SDA.
The chances of success may also be higher as an
employer can defend a claim under the new right to
request legislation by showing that he has followed
the procedure and has a qualifying reason to reject
the employee’s application. Defending a claim of sex
discrimination is likely to be harder because the
employer would need to show that rejection of the
application was objectively justified.
Linklaters
February 2003
THE RIGHT TO REQUEST 9
GUIDANCE FOR EMPLOYERS
Introduction
As ever, the introduction of new workplace
legislation has produced a wide range of responses
from employers. They run from those who groan,
“Not more red tape!” and fear that this will open
the floodgates to chaotic work schedules, to those
who feel that restricting the legal right to request
flexible options to the parents of young children is a
retrogressive step from their own, broader policies.
PARENTS AT WORK, and its consultancy BALANCE AT
WORK, take the view that flexible working produces
tangible business benefits, for employers as well as
employees. We welcome this legislation, although
we believe maximum benefits accrue to
organisations when flexibility is available to all
employees who can make the business case for
changed working arrangements. Our experience with
employers of all sizes and sectors leads us to believe
that with a positive attitude, all organisations can
benefit from incorporating the practices and process
required by the “Right to Request” legislation into
their systems. The “red tape” involved need not be
complex; issues of recruitment, retention, stress,
sickness and productivity can be addressed; and for
those not already working in this way, the profits of
flexible working for all should become apparent.
The issue that flexible working and the new
legislation addresses is work-life balance. Research,
experience, government and many organisations can
prove that addressing work-life balance issues
through flexible working is sound business sense and
good management practice. The primary aim of a
work-life initiative is to support business objectives
and increase efficiency and productivity, but
produces win-win outcomes for employees and the
organisation, in supporting each individual to
balance their work and home commitments.
Business benefits of flexible working
Social and economic forces make this a key time in
extending best practice work and people
management skills. Any organisation’s people are a
valuable and expensive resource. Consequently,
successfully managed, flexible working arrangements
can result in enormous benefits to the business,
managers and staff alike. They include:
Cost savings and higher returns
There is a reduction in overheads and running
costs through more efficient use of facilities.
A motivated workforce achieves a demonstrably
higher level of productivity, which is then
reflected in the organisation’s success.
Improved service delivery
Extended business hours can be covered with
flexible work schedules.
The ability to tailor the working day to fit in with
personal commitments releases extra energy to be
channelled into work.
Reduced stress means reduced sickness absence,
while personal commitments can be fulfilled in
one's own, flexible, time.
Recruitment and retention of quality staff
Good work-life balance encourages employees to
stay with the organisation and not seek work
elsewhere.
The increased retention of highly skilled staff cuts
down the need for and the cost of taking on new
employees, as well as transfer of skills and
experience to competitor organisations.
Flexible working offers a greater ability to attract
high calibre, new staff in an increasingly
competitive labour market. Organisations which
show that they value their employees as whole
people gain or enhance an enviable reputation as
"Employers of Choice".
An ever-changing composition of the labour pool
over the next few decades means that older
people, carers and groups with special needs will
form a major part of the future labour market.
Flexible working attracts such employees.
Legislative compliance
As well as the new “Right to Request” legislation,
along with the Sex Discrimination Act which this
booklet addresses, long-standing legislation
relating to employees and their ability to balance
their work and home lives include the
Employment Relations Act, Working Time
Regulations, Part-Time Workers Regulations,
Health & Safety At Work Act, Race Relations and
Disability Discrimination Acts.
Creating flexible working policies
and practices
Organisations who have flexible working policies and
practices in place manage these in a variety of
ways. Some have written policies, guidelines and
formally embed flexibility and work-life balance
10 THE RIGHT TO REQUEST
CASE STUDY: HBOS plc — ENSURING CONSISTENCY
With a philosophy of devolving practices to business divisions, HBOS has developed Diversity Standards of
Excellence to ensure consistency of application across the company. The Standards reflect market best
practice and are concerned with retention, respect and representation.
HBOS also monitors policies and practices across the business through annual Staff Opinion Surveys and
monthly tracker questionnaires supplemented by tightly managed in-house focus groups. The annual Staff
Opinion Survey includes a number of diversity-related questions aimed at identifying whether staff feel
valued (a current stakeholder goal for the business) and whether they are achieving a balance between
work and external aspects of their lives.
Divisions communicate survey results to their staff members, and together they plan strategies for
improvement in areas where a shortfall has been identified. Monthly tracker questionnaires on a range of
business-related topics are sent to a random sample of employees, while focus groups have been used to
concentrate on specific concerns and to generate local solutions.
within HR processes, such as induction, appraisal,
promotion, training and exit interviews. Others take
an informal approach without written policies, but
promote a flexible culture where employees know
they can request changed working arrangements and
each case is taken on its merits.
The new legislation defines a process through which
application for and assessment of requests for
flexible working arrangements for the relevant
employees must be undertaken. An employee can
make a complaint against an employer if the
employer did not deal with the application as
required by the Procedure Regulations. So it will
stand any organisation in good stead to introduce a
formal procedure which complies with legislative
requirements. Consulting with stakeholders,
including staff and unions, in creating the options
and the processes can prove effective.
Here, then, are some suggestions for policies and
guidelines for your organisation, your managers and
your employees, which can be tailored to the
specific circumstances of your business, but should
keep you legislatively compliant.
Ground rules for flexible working
management practices in any circumstances.
It’s about the work that gets done, not how
long someone can be seen sitting in their office
chair.
It’s about good communication – anyone who is
working flexibly, has to ensure that everyone who
might be affected knows and agrees to changes.
That means talking regularly to managers,
colleagues and clients.
It’s about staying flexible - flexible work
arrangements may be a new way to work and will
need fine-tuning. Part of working in and managing a
flexible team is constant willingness, from all
parties, to review the situation to ensure that goals
and targets are being met.
And, ideally:
It’s something for everyone – regardless of age,
culture or gender, not just parents, although their
needs are important and specifically catered for in
the new legislation. Resentment from employees
excluded from flexible working options can
contribute to poor morale and relationships, lowered
commitment and retention.
There are some ground rules to the successful
implementation of flexible working arrangements,
which need to be taken on board by senior
management, line managers and all employees. The
underlying principles are:
Employees should be aware that both legislatively
and in terms of good business practice, flexible
working is not an automatic entitlement, apart from
statutory leave such as Maternity, Paternity,
Adoption and Parental Leave.
It’s a partnership – it takes co-operation to make
flexible working work for the organisation, the team
and the individual. It allows more flexibility for life
outside work, but there also has to be give and take
to meet business or service needs.
Use of the various options should always be at the
discretion of their manager and governed by the
needs of the business (except where there is
statutory legal entitlement). However, individuals
should have a right to use the organisation’s
standard appeals procedure where they feel their
request for changed working patterns has been
unfairly assessed.
It’s about results - setting goals, targets and
objectives and managing by results are good
THE RIGHT TO REQUEST 11
CASE STUDY: THE CO-OPERATIVE BANK — WORKING WITH THE UNION
The Co-operative Bank has a partnership agreement with the union UNIFI which enables them to work
together on the development of HR Policies.
A year ago a project team was established, comprising line mangers and staff from business areas, local
union representatives and a full time member of the staff union. The team’s task was to review existing
family friendly policies and extend them to accommodate broader work-life balance issues in line with
legislation and staff desires.
Union involvement at an early stage meant the bank benefited from the experience of local
representatives who made constructive suggestions about the practicalities of implementing new policies.
In particular their advice on educating and supporting line managers to ensure greater consistency of policy
application was invaluable.
Flexible working options
Here are some popular types of flexible working
arrangements which it may be possible for you to
offer. You may also be able to consider other
options, but remember that any flexible working
arrangement must be consistent with business need.
Flexible working arrangements for full-time
workers can include:
Compressed working week or fortnight
Full-time employees who wish to work their
contracted hours can do so over extended days
but a shorter week or fortnight. Examples include
working four long days instead of five, doing a
nine day fortnight, or shortening breaks and
leaving earlier. Organisational benefits include
being able to extend the “cover” of some
working days. The contracted number of hours
worked and employee benefits remain
unchanged.
Staggered hours
Staggered hours working has flexible start and
finish times; it is not intended to reduce the
number of working hours from normal full-time
hours and does not accrue “extra” hours. The
contracted number of hours worked and
employee benefits remain unchanged.
Flexible working arrangements for part-time
workers can include:
Part-time work and reduced hours
The number of hours worked less than the normal
full-time contract is determined by (i) the needs
of the job, and (ii) the needs of the employee.
Part-time employees can increase the flexibility
of worked hours (for instance if cover is needed
only at peak times). Part-time employees are
entitled to the same benefits as full-time
employees, pro rata to the number of hours they
work.
Job sharing
Job sharing is according to individual contract;
the job sharer has a permanent contract with
pro-rata pay and benefits. The job sharers share
responsibility or have joint responsibility for a
full-time job description. They have an agreed
time schedule and a division of responsibilities by
task and time between sharers, including a handover period. An essential part of job share is to
ensure effective communication between both
parties, and also with the line manager. A clear
statement in the contract is needed in respect of
the resignation of one job-sharer. Usually, if the
remaining sharer does not want the job on a fulltime basis, another partner is sought. Benefits
include two people bringing two sets of
experiences and skills to the job, as well as
flexibility; working during busy peak times
together; and covering for each other's absences.
“V” time (Voluntary Reduced Work time)
"V" time is the voluntary reduction in working
hours on a temporary basis, usually ranging from
5% to 50% of normal hours. An employee's salary
is reduced by the same percentage. The
reduction is for a specified period of time,
usually six to twelve months. Employee benefits
are maintained, pro rated where necessary. The
employee is contracted to return to full-time
work on a given date, unless otherwise
negotiated.
Flexible arrangements that can apply to either
full-time or part-time workers are:
Flexitime
This allows employees to choose, within set
limits, the times they start and finish work.
Flexitime can be operated around "core times"
(e.g. 10am — 12pm and 2 — 4pm) during which
employees have to be at work, or without
restrictions. Flexitime may also permit the carry
over of excess or deficit hours beyond an
accounting period (e.g. monthly), with the option
12 THE RIGHT TO REQUEST
CASE STUDY — LLOYDS TSB – PROVIDING GUIDANCE FOR STAFF AND MANAGERS
The ‘Work Options Scheme’ at Lloyds TSB has been in place since 1999 and is well established. Under the
scheme all employees may apply for flexible working arrangements, but have no guarantee their request
will be approved.
Employee guidance, available in paper form and on the Lloyds TSB intranet, lists six potential working
options to guide staff: reduced hours; compressed hours; variable hours (i.e. a regular pattern of varying
start and finish times): tele-working; term-time working; and job sharing. The list is not prescriptive, so
that employees may both propose other options and ‘mix and match’ the ones suggested.
A job-share register is available on-line, or via the HR Call Centre where staff currently on maternity leave
are considering this option for returning to work. In reviewing ways to boost the uptake of flexible working
options, Lloyds TSB realised the number of job-shares was low, primarily due to the difficulties of finding a
partner. The register aims to facilitate this; and the on-line version carries guidance on how to make a job
share effective.
Managers faced with a flexible working request can also refer to website guidance or ring the HR Call
Centre to discuss specific concerns with an internal HR specialist.
of taking "flexi-leave" or TOIL (time off in lieu).
Devolved team responsibility for rotas fosters
high productivity, team relations and efficiency.
Annualised hours
Annualised hours systems rely on a contract
which sets out the number of hours an employee
is expected to work per annum, rather than the
more usual system of setting the number of hours
worked over a period of a week. Hours of work
can be varied from week to week and month to
month in accordance with the needs of the
business and the needs of the employee,
following mutual agreement. The number of
contracted hours is calculated for the whole
working year and takes into account the length of
the traditional working week and statutory and
contracted holidays. No overtime is paid, as the
distinction between the basic working week and
overtime is removed. Overtime as such can only
be calculated on the completion of the annual
contracted hours. Salaries are paid in 12 equal
monthly instalments
The most common form of annualised hours is:
Term-time working
Term-time working is done on a permanent
contract that continues throughout the year,
including school holidays. An employee can work
to either a full-time contract and take unpaid
leave during school holidays, or a part-time
contract, but work extra days during term-time
which can be accrued and taken off during school
holidays. In some roles with seasonal variation in
peaks and troughs, the hours may suit the business.
Home- or tele-working
This is a contractual arrangement whereby the
main place of work is the employee’s home (fulltime) or the employee works either completely
or for a percentage of time from his/her home,
or somewhere other than the company base. The
home or site must be deemed suitable for the
pursuance of tasks, in terms of equipment,
environment, communication, connections, etc.
Whilst some jobs lend themselves very well to
home working, many do not. Productivity
measures will be the same as for office based
employees
Career break
A career break is an extended period of unpaid
absence and can be used for study leave,
personal development, in conjunction with
Maternity/ Paternity/Adoptive Leave or for any
other reason. Many organisations state that
employees must have completed one or more
year’s service in order to be considered for a
career break. Contractual arrangements vary,
although there is no legal requirement to keep
the job open. Employees can be required to
resign, on the guarantee that they will be
strongly considered for reemployment.
Application for and assessment of
requests for flexible working
arrangements
To comply with the “Right to Request” legislation,
you will need to have an application form for
requests for flexible working. The structure of the
form should lead the applicant through a series of
questions which enable her/him to make the
business case for his/her changed working
THE RIGHT TO REQUEST 13
arrangements. The following suggestions should
cover all relevant areas, and are followed by
guidance to the applicant in completing their
request, side by side with guidance to the manager
who will be assessing the request. You may want to
use this as the basis for generating your own
application form and a set of notes each for
applicant and manager/assessor.
Application for changed working
arrangements
The applicant should state their Name, Job Title,
Department, Manager, Contact details and the Date
that the application is lodged at the top of the
form.
The proposed new working arrangement should be
outlined, perhaps as a series of tick boxes if you
have specific options, such as:
Job Share Part-time Working Term-time Working Flexible Work Schedule Home-working Career Break Other (please specify) ,
and the applicant asked whether the arrangement is
to be temporary or permanent.
A table, such as the one below, can be useful to
compare current and proposed working
arrangements:
DAYS
Monday
HOURS
HOURS
ON-SITE OFF-SITE
Current Requested
Where?
Making the Business Case
The applicant should provide answers, in writing, to
questions around the following areas, where
relevant to your business:
1. How will the proposed arrangement enhance or at least sustain - your ability to get your job
done?
EMPLOYEE
Explain how your proposed arrangement adds
value to the team/department's service.
Provide evidence of how you will contribute as
much, if not more, with your new arrangement be specific.
Consider broad gains such as reduced stress,
decreased absenteeism and improved
punctuality/commuting.
At a minimum, show why the arrangement will
not harm the service.
A sample response for this question: "My flexible
hours working week will allow me to work more
hours during busy periods and not waste time in
the office at less busy times".
MANAGER
Look for evidence that the individual views this
arrangement as service-based.
The response should show that the arrangement
will at least not harm the service and, ideally, will
enhance it. You can approve either outcome.
Look for individual gains (increased access to
clients, reduced payroll costs) as well as broad
gains (staff retention, reduced stress etc).
Be aware of any faulty assumptions on your part
that might affect the review of a flexible working
arrangement such as: "Meetings can only happen
when everyone is in the same room together" or "I
will lose control of my ability to assess the
performance of staff on flexible working
arrangements".
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
TOTAL
weekly hours
2. Describe any additional benefits to the
Team/Department that might result from this
flexible working arrangement:
EMPLOYEE
Provide examples of how your arrangement will
improve your ability to support the
team/department.
Give specific examples, such as increased
flexibility in hours of availability to clients, or
higher productivity preparing documents
uninterrupted at home.
14 THE RIGHT TO REQUEST
Sample response for this question: "My part-time
home working will allow me to concentrate on
contact with clients during my office days, and
though I can be contacted by mobile in
emergencies on my home-working day, I will be
able to process documents with fewer interruptions."
MANAGER
Assess responses to this question on the basis of
demonstrated links to the team/department in
terms of client service, internal process and
external capabilities.
Look for specific, measurable outcomes that can
be used to determine the proposed business gain.
Be aware of any faulty assumptions on your part
regarding flexible working arrangements such as:
"Organisational benefits take too long to kick in they will not affect my bottom line" or "It will
take too much time to manage".
3. What problems could the new arrangement
raise with:
External clients/customers
Internal clients/customers (if applicable)
Your team/colleagues
Your manager
EMPLOYEE
For each category think how your new
arrangement will alter working together.
Identify or suggest any possible problems,
including obvious ones (not in on Mondays) as well
as more subtle ones (the ability of your supervisor
or line manager to assess your performance).
An example may be: "I won't be in the office to
cover phone calls at certain times of day".
MANAGER
Make sure the individual has fully completed this
section.
Base your assessment on the thoroughness with
which the individual has answered the question.
Does the individual clearly understand who may
be affected by the new arrangement?
Has the individual clearly provided concrete and
accurate examples of possible challenges that
might arise?
Consider consulting with key people mentioned in
the individual's response to see if these problems
cover ones that they might anticipate.
Be aware of your own faulty assumptions about
flexible working arrangements such as: "Clients
want access to staff all the time" or "If someone
isn't around I can't access them".
4. How could these be overcome?
EMPLOYEE
For each of the groups listed, provide concrete
solutions for any problems listed.
Ideally, provide several possible solutions for each
problem.
Preferably, consult your colleagues and see what
solutions can be devised and work for the whole
team.
If appropriate, talk to your clients or customers
about how they would view your new working
arrangement.
Show that you are prepared to be flexible in
return for the flexibility offered.
Suggest alternatives that will meet the needs of
the team/department, as well as all the
individuals involved.
Sample response for this question: "On homeworking days I'll ring in to collect voice mail and
return any urgent calls from home".
MANAGER
Look for specific, concrete and well-planned
solutions.
An effective response will provide alternative
solutions.
An effective response will also show how the
solutions support the service.
Be aware of your own faulty assumptions such as
"Our particular service requirements make this
impossible to work here".
5. As a result of this new way of working, please
describe how you and your manager will assess
whether your performance is meeting or
exceeding expectations. Be specific.
EMPLOYEE
Develop or adapt clear and definite goals for
effectively performing your job.
Implement timescales for delivering key pieces of
work.
Agree with your Manager what characteristics and
behaviours constitute performing well in your job.
A sample response would be: "I will continue to
meet all expectations for my performance
appraisal. I will also use the better focus of my
home-working days to prepare documentation 5%
more quickly".
THE RIGHT TO REQUEST 15
MANAGER
Look for clear and definite goals and objectives.
Expect the individual to have developed a
reasonable time-scale for delivering key pieces of
work.
Work with the individual on fine-tuning the
characteristics and behaviours that constitute
performing well in the job.
Assess the quality of this response on its specific
nature, its forward-thinking approach, its
reasonableness in terms of performance and timescales and its ability to be measured.
Be aware of your faulty assumptions about
flexibility such as: "Flexible working only works
for clerical and administrative roles".
6. What review process should you and your
Manager use to constructively monitor and
improve your flexible working arrangement?
Specify the measurable outcomes to be used in
the review process.
EMPLOYEE
Use the standard performance appraisal process
as a starting point.
Develop a measurement plan that includes
timescales and specific performance standards for
yourself.
Think about developing a performance measure
which involves the above stakeholders. Try to find
a way to answer the question: "What would my
Manager consider to be a successful performance
arrangement?"
Involve the above groups in developing your
performance measures.
Sample response for this question: "I will maintain
the same client contact as previously, and have a
quicker turnaround of paperwork. I would like to
meet my manager fortnightly for the first three
months so s/he can monitor my progress on this."
MANAGER
Look for specific goals (service-based, teambased, individual performance-based) that you
and the individual can agree.
Expect the individual to consult with all the key
people involved to develop an effective
performance plan.
Hold the individual to the same standard as you
apply to other staff, neither higher nor lower.
Consider getting feedback from the individual on
your skills in managing the new working
arrangement.
Be aware that a review period is not a trial period.
Be aware of any faulty assumptions you may have
about flexible working, such as: "Working flexibly
is not for those wanting to further their careers"
or "People's visibility is an important component
of their performance".
7. What would be one or more early warning signs
that the arrangement was not working?
EMPLOYEE
Think about and respond to worst case scenarios.
Consider the possible negative effects of the
arrangement on your team members, clients or
customers and manager. At what point would
these negative effects make the arrangement
unworkable?
Highlight the signs that would characterise
failure.
Sample response for this question: "I will know
that my arrangement is unsuccessful if other team
members have problems getting their job done
because I am inaccessible".
MANAGER
Encourage the individual to be explicit about
worst case scenarios.
Discuss with the individual who might be affected
by the arrangement and any possible negative
effects.
Have the individual think about warning signs that
might signal the arrangement isn't working, and
that would help any problem to be resolved.
Be aware of any faulty assumptions about
flexibility, such as: "This is going to involve me in
too much management time".
Guidelines and schedule for
managers assessing requests
Managers should be aware that the procedure for
requesting a flexible schedule has two main
features:
The approach is business-based - you need to
ask how the work will get done and what the
impact will be on the service. As a manager you
will make decisions about service needs, though
an employee’s personal circumstances will affect
their ability to provide a good service. You will
need to know whether the applicant for flexible
working is the parent of a young child and any
applicant may wish to discuss their reason for
16 THE RIGHT TO REQUEST
CASE STUDY — BP: WEB-BASED GUIDANCE ON FLEXIBLE WORKING
When the BP “Workchoices” website was launched in September 2002, communications were sent to all UK
employees in the form of a desk drop, e-mail, posters and local site road shows, together with flyers and
promotional items. Workchoices provides a one-stop access to BP’s work-life policies, procedures and
programmes designed to help employees get the most out of their career/home life balance. The site was
created in-house, after undertaking several case studies and running focus groups to find out the needs of
employees. The idea was to provide a distinctive and easy to use site.
BP offers a wide range of flexible work options. A Personal Work Designer was created in order to assist
staff when making requests to work flexibly. Using a range of examples, this document enables employees
to think through the detail of changing their working patterns, and what the implications are – both for
themselves and the business. Web-based guidance is also available for managers and supports them through
the decision making process.
These documents are currently being adapted accordingly to incorporate the new legislative requirements
due to come into force in April 2003. BP also intend to provide management training to ensure compliance
and best practice.
option is the best one for the individual and the
service (e.g. part-time hours versus a flexible
hours option).
requesting a new working arrangement with you,
but their reason is not part of your decisionmaking process.
Let them know they can ask you for further
assistance when they have completed a first
draft of their Application Form. They can then
submit a written application laying out their
proposal or arrange a further meeting with you
to discuss the proposal.
The process is collaborative - staff have an
opportunity to make their case for working
flexibly, and you have the responsibility for
considering all the business benefits of the
arrangement and ensuring there is no negative
impact on the service. Although the final decision
rests with you, the decision-making process
should be a collaborative one between you and
your team member.
Make a note of what was said in the meeting,
including the date, and file.
3.
Schedule
1.
Ensure that members of your team know what
flexible working options are available in your
organisation and the process for requesting a
change in their working arrangements. They
should be aware that before submitting a
formal request, they should meet with you for
a preliminary discussion.
2.
Give any team member planning to request a
change, the Application for Changed Working
Arrangements and Guidelines for Employees to
read and consider before your preliminary
meeting. This will encourage them to think
through their plan in the context of meeting
departmental and team needs, as well as their
own personal requirements.
At the meeting, talk about the value you see in
their proposal as well as any concerns you may
have about how it might affect the individual's
ability to work productively and effectively.
Offer positive support with filling out their
Application Form. Discuss whether the proposed
The timing of the procedure laid down in the
legislation starts from the date a formal,
written proposal is lodged. You must schedule a
meeting to discuss the proposition with the
applicant to occur within 28 days of that date.
(Your team members will be entitled to bring a
co-worker to this meeting, who s/he can confer
with, but the companion cannot answer questions
on behalf of the employee.) Allow yourself
adequate time to consider the implications of
the request before making a response.
Having read the proposal, consider carefully
the following:
The needs of the job:
Start by doing a brief a job analysis for the
post in question
Check if the employee’s proposed revised
hours fit with the tasks outlined in the job
analysis
Consider how the tasks might be divided up
differently
Will the impact on clients be beneficial? (e.g.
retention of a valued member of staff, even
if it means shorter hours?)
THE RIGHT TO REQUEST 17
CASE STUDY: CITIGROUP — ASSESSING APPLICATIONS
At Citigroup managers are required to assess all applications for flexible working against the following
clearly defined criteria:
Citigroup Work Environment
needs of the business
customer requirements (internal/external)
workload
costs
organisational issues (impact on department)
Work Function
performance monitoring
necessary work space and/or equipment requirements
Individual
performance
demonstrated independence, motivation and accountability
demonstrated need for remote access
Some of these criteria relate only to applications for individuals to tele-work and are irrelevant for other
applications. Citigroup also have a fairly strong health warning around individuals who may be in controlled
functions or using sophisticated IT platforms/recorded phone lines or close supervision for regulatory
purposes. In these situations it may prove difficult to allow individuals to work flexibly – particularly at
home.
Managing the arrangement:
How will the new arrangement be supervised
and performance measured?
Do you need further help or training to assist
you with staff supervision?
What will be the impact on the other people
you manage?
The needs of the employee:
Will there be changes in their terms and
conditions they should be aware of?
How will the new arrangement affect future
appraisals or promotion?
How often will the arrangement be
reviewed?
Impact on resources:
Will the long term benefits of flexible
working (such as staff retention and savings
on recruitment) outweigh the short term
costs of implementing change?
4.
At the scheduled meeting with the applicant
(and companion), give your feedback.
Refusing a request
Sometimes, it may be necessary to turn down
or postpone a request, for valid service
reasons. Remember, the “Right to Request”
legislation only allows refusal of requests on
the grounds of:
the burden of additional costs
detrimental effect on 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
insufficiency of work during the periods the
employee proposes to work
planned structural changes
Whatever the reasons, indicate the specific
business reasons for refusing a request. Give
details of any specific changes or targets to
meet that would enable you to approve it,
and/or a time frame within which you would
consider a revised request. Although the
legislation states that an employee may not
lodge a second request within a year of a first
request, it is your right to waive this timescale.
Keep a record of the date, reason and
circumstances of the refusal on file so that it
can be reviewed at a later date. Ask the
individual to sign a copy of your notes as an
accurate record of your meeting. Whether they
18 THE RIGHT TO REQUEST
5.
6.
will agree to do this or not, file your notes and
provide HR with a hard copy.
Starting the new arrangement
Approving a request
If you are happy with the request, there is no
reason why you should not say so at the
meeting and discuss how and when the change
will be progressed. You might want to agree
lines of communication - especially important
when working off-site; and a plan for formal
evaluation of the changed working
arrangement, which can be part of the
performance development process. You should
still keep notes of this meeting, again if
possible signed by the employee, on your file
and with a hard copy to HR.
Once you have agreed the new working arrangement
that best suits everyone’s needs, you will need to
work out details like:
Within 14 days of the meeting you must write
to the employee to either agree to the new
work pattern, or provide clear business grounds
as to why the application cannot be accepted
and the reason why the ground applies in the
circumstances.
The employee then has a right to appeal within
14 days of your written notification. The
appeal, to which the employee may again bring
a companion, has to be heard within a further
14 days. The notice of the appeal decision must
be given in writing within 14 days of the appeal
hearing.
Make sure you advise other team members of the
change in working hours and have a plan of action
for dealing with any problems or issues that may
arise from the change. Hold regular reviews to
ensure the scheme is working well for everyone. Use
team meetings or find another way to ensure
flexible workers remain informed and involved
members of staff. Let them know as new training
and job opportunities arise. Encourage the team to
devise solutions for any problems that arise.
Under the “Right to Request” legislation, a
complaint can be on one of three grounds:
the employer did not deal with the
application as required by the Procedure
Regulations (or the Remedies Regulations);
the employer did not refuse the application
on one of the grounds set out in the
legislation (see above); or
the decision by the employer to reject the
application was based on incorrect facts.
How work will be monitored and evaluated
A timetable for reviews, appraisals and staff
development
Length of review period if this has been agreed
Terms and conditions of contracts, changes to pay,
pensions etc
Plans for keeping in touch and training (for
example, will the post holder be required to come
in for meetings in non-working time occasionally?)
Back-up arrangements in case of emergency – i.e.
contacting them at home
Making it work
THE RIGHT TO REQUEST 19
APPENDIX A
LINKLATERS/PARENTS AT WORK “Right to Request”
Legislation Survey
EXECUTIVE SUMMARY
LIST OF RESPONDENTS
Organisation
ABN AMRO
London
Accenture Services Ltd
London
Addenbrooke’s NHS Trust
Cambridge
American Express Europe
London
AMP
London
ASDA
Leeds
Barclays
London
The Boots Co PLC
Nottingham
BBC
London
BP plc
London
BT
London
Citigroup
London
The Co-operative Bank PLC
Manchester
DNE
London
GlaxoSmithKline
Brentford, Middx
HBOS
Halifax
IBM
Portsmouth
J P Morgan
London
Kings College Hospital NHS Trust
London
Lloyds TSB
Bristol
Marks & Spencer PLC
London
Microsoft Ltd
Reading
Nationwide Building Society
Swindon
Schroders Investment Mgmt Ltd
London
Scottish Equitable PLC
Edinburgh
Unilever UK
Walton-on-Thames
Vodafone
Newbury, Berks.
West LB Group
London
Staff numbers
3,000
Financial Services
7,600
Prof Services/Mgmt Cons
5,500
NHS
7,000
Finance
6,000
Financial Services
135,000
Retail
65,000
Banking & Finance
65,000
Retail
26,200
Broadcasting/Media
17,000
Energy/oil
98,000
Communications
10,000
Financial Services
4,200
Banking
250
Media
22,000
Pharmaceuticals
60,000
Financial Services
24,000
T Services
12,000
Financial Services
5015
NHS
63,000
Financial Services
65,000
Retail
1,200
Software development
14,500
Financial Services
1400
Fund Management
4,500
Financial Services
13,500
Manufacturing
10,000
Telecoms
1,500
Financial Services
Forty-one organisations known to PARENTS AT WORK
and Linklaters were contacted in early January 2003
and asked to complete a survey into the implications
of the new legislation for their business. Twentyeight (68%) responded within the timescale. The
smallest employed 250 staff, the largest 135,000
staff; in total respondents between them employed
nearly three quarters of a million staff in a range of
sectors.
The majority of respondents (82%) had a formal and
written policy allowing all employees to alter
working hours or other work arrangements to
facilitate work/home balance. Half also had
standard procedures and application forms.
In the vast majority of organisations (93%) the
request for flexible arrangements was heard by line
managers; who also made the decision, either alone
(46%) or jointly with HR (50%). Only a small minority
of businesses had any formal means of monitoring
consistency; although a much greater majority
provided detailed information and guidance aimed
at facilitating a positive response. Arrangements for
record keeping also varied, but where the change to
working arrangements represented a change to
terms and conditions of employment, this was
formally recorded.
The majority of employers (57%) offered a formal
right of appeal; while the minority who did not used
a range of informal strategies to remain flexible and
responsive to employee requests. A majority (68%)
also provided guidance for staff on putting together
an application. Typically this included information
on available flexible working arrangements and tips
on making the business case. In a number of
organisations the information was available on an
intranet as well as in paper form.
While the majority of employers (68%) said staff
were not accompanied as part of the process,
reasons varied and were usually down to the fact
that employees rarely requested it, or the company
culture militated against it. A few employers felt
such formal representation tended to make a big
issue out of something they were promoting as a
simple and routine part of management.
The overwhelming reason for rejecting requests was
detrimental impact to the business - most frequently
quantified as inability to maintain levels of customer
service, lack of work available in the hours the
20 THE RIGHT TO REQUEST
employee wanted to work and negative impact on
other staff in the team or department. However, the
majority of employers endeavoured to be
accommodating wherever possible. In this context,
three quarters said the new legislation would have
no (or minimal) impact on their likelihood of
granting requests.
A large minority (46%) felt their current procedures
and practices satisfied the new legislation. Where it
did not, it was frequently a case of formalising
existing informal processes.
Overall, respondents felt the impact on their
business of the new legislation would be minimal.
On the positive side, it would probably raise
employee awareness of flexible working options and
make them more inclined to request these. On the
negative side, the legal process was likely to be
more unwieldy than current, less formal, practice;
and it could be divisive since it is aimed only at one
small group.
SUMMARY OF RESPONSES
1 OVERVIEW
Number of responses received
28
Sectors coveredBanking & Financial
Services; Energy; Information &
Communication Technologies; Management Consultancy; Manufacturing;
Media; NHS; Pharmaceuticals; Retail;
Total number of employees covered
747,365
Do you currently have a policy which allows
employees to alter their working hours or other
arrangements (eg place of work) to facilitate
work/home balance?
Yes, formal and written
23
Yes, part formal, part informal
1
Yes, informal
4
Does it apply to all staff, or only certain groups?
All staff
26*
Some staff
2
*Citigroup requires employees to have six months
service (others have no qualifying period).
At IBM there are small areas of the company where
it is felt the business is not currently able to
accommodate flexible working; while one other
organisation limits access to those employees with
dependants requiring their attention.
Do you plan to change any of this in the light of
the April 2003 legislation?
No
6
A minority of respondents felt their policy fully met
the requirements of the forthcoming legislation. In
some cases – such as at ABN AMRO – this is because a
new policy had recently been drafted in anticipation
of the changes due in April.
Yes
20
Under consideration
2
The majority of respondents were able to articulate
planned changes. For example, Barclays told us:
“The policy will be formalised giving more details
of types of options available. The Right to
Request will be extended to all staff, not only
parents of under sixes.”
While Unilever planned to:
“offer more consistency, clarity and guidelines,
especially for example to shift workers where it
is more difficult to agree flexible working.”
A small minority felt applying the new legislation
could prove difficult, and were still reviewing their
policies. For example, a retail financial services
organisation said:
“We will need to consider whether to apply the
legislative boundaries around notification/appeal
to the current policy which is used for anyone
requesting a change or whether we have two
policies – one for those who qualify by law and
one for those that do not. We don’t want to
make it too complicated.”
2 THE PROCEDURE
Do you have a standard application
form/procedure?
Yes
14
Procedure, but no forms
2
No
12
Who hears the request?
Line or HR
Line manager alone
Line and HR
HR Director/Senior HR
1
16
10
1
THE RIGHT TO REQUEST 21
The majority of organisations involve the employee’s
line manager in hearing the request. Only two
organisations permit HR to hear a request alone.
Who makes the decision?
Line manager alone
13
Line with HR advice, or jointly
13
Line with HR & Compliance
1
HR Director
1
Again, the majority of organisations left the decision
up to line managers, usually supported by guidance
from HR.
How is consistency ensured?
Central monitoring by a minority of respondents
Company philosophy of treating employees fairly,
supported by easily accessible guidance
material
Some concerns about consistency
Only a small minority of respondents appeared to
have a formal process in place designed to
guarantee consistency. For example:
At Citigroup all requests must be assessed against
the same set of criteria.
At Addenbrooke’s NHS Trust copies of all flexible
request forms are sent to HR. Should the line
manager wish to decline a request s/he must seek
advice from local HR before doing so.
The HR Director and legal department of one
technology company monitor all requests.
A large number of respondents relied on company
philosophy and training to encourage positive
attitudes to flexibility:
The Lloyds TSB policy makes it clear that all
requests should be agreed unless a clear business
detriment can be proved. Lloyds TSB has also
undertaken a substantial programme of work to
sell the benefits of flexible working to the
business.
ASDA adopts a corporate philosophy of finding a way
to ‘say yes’.
At Nationwide “Managers aim to create an
environment of open and honest communication in
which employees are encouraged to discuss their
ideas. Being fair and consistent does not necessarily
mean treating everyone exactly the same.”
However, a few respondents did express concerns
about consistency. For example:
BT reported:“to be honest this is our ‘grey area’
which is why we are tightening our procedures”,
while AMP group said they had no real mechanism at
present and Unilever told us it was “currently not
possible”.
What records of the process are kept?
Record keeping varies considerably from business
to business
Application forms and notes of meetings are
typically held locally
Contractual changes are always recorded
Few organisations had a comprehensive process for
keeping records. ABN AMRO is an exception - copies
of all paperwork including details and outcome of
any appeal are kept. As already mentioned, ABN
AMRO recently introduced a new policy in
preparation for the legislation.
A number of organisations encourage managers to
keep their own notes of the process, while formal
paperwork, such as request forms or
communications with an employee, were typically
held in personnel files.
Where the change to working arrangements
represented a formal change to terms and
conditions of employment, a record was always
made. For example, at Citigroup the change is
recorded in the HR System (PeopleSoft) while at
Lloyds TSB changes in hours are recorded with the
HR call centre.
Do you plan to change any of this in the light of
the April 2003 legislation?
No
6
Yes
22
The majority of respondents felt their procedures
would need to be amended in line with legal
requirements. For example:
BP said: “We will adapt our request form to
incorporate the new legislation and highlight the
fact that those who are eligible under new
legislation will have priority. We also propose to
introduce a more formal monitoring system.”
Unilever “will have a single national policy and
application process that falls within legislative
processes and procedure.”
22 THE RIGHT TO REQUEST
However, the sentiments expressed (below) by
Lloyds TSB were echoed by others:
“Of key importance for us is that flexible working
remains as easy as possible to achieve whilst also
complying with the clear process which the
legislation outlines.”
3 THE APPEAL PROCEDURE
Do you currently offer a right of appeal?
Yes
16*
*One respondent saying yes did not have a formal
process; while a second allowed a right of appeal as
part of a broader policy of access to appeals
procedures in a non-unionised environment.
No
4
No, but may use grievance procedure
5
No, but employee & manager asked
to set date to review decision
1
No, but employee may approach HR
2
Typically, where no formal appeals procedure is
available, employers endeavour to remain flexible
and responsive using the range of strategies listed
above.
Is the appeal
A review of the decision?
13*
A full re-hearing?
2
Other
3
*Two organisations (Unilever and Addenbrooke’s NHS
Trust) offered both a review of the decision or a
full-re-hearing dependant on the situation.
Three organisations said they would hear an appeal
through the company’s formal grievance procedures.
Do you plan to change any of this in the light of
the April 2003 legislation?
No
8
Yes
20
The majority of respondents planned to introduce a
formal appeals procedure as required by the
legislation, although two said they were still
reviewing their proposals.
4 SUPPORT GIVEN TO THE EMPLOYEE
Does the employee receive any guidance on how
to put an application together?
No
9
Yes
19
The majority of respondents provided guidance for
employees in how to put together an application.
Typically this included information on the range of
flexible working arrangements available, and tips on
how to make the business case for a change in
hours.
In a number of organisations information can be
accessed through an intranet, as well as in paper
form. For example:
At Citigroup the application procedure is explained
in full on the HR intranet, and standardised forms
are provided. Guidance is given on Health & Safety
issues, work-life balance etc. The employee also
carries out a self-assessment of their suitability to
work flexibly prior to making a request.
At Nationwide computer-based training on flexible
working is available to all employees.
At Addenbrooke’s NHS Trust there is no formal
guidance, but the employee can look at a copy of
the flexible working procedures and discuss the
matter with the HR manger.
Is the employee accompanied/represented in the
process?
No
17
No, unless grievance procedure
has been invoked
2
Yes
9
A number of respondents categorically said no.
Among the rest this was a ‘grey area’. Typically,
being accompanied is not encouraged, and depends
on the employee specifically asking for it to happen.
For example one employer said:
“If someone asks to be accompanied we are
unlikely to refuse, but the idea is that a request
to change working patterns is not made into a big
deal with all the associated formalities.”
While IBM, BP and Unilever were among those who
would allow it if the employee so wished, most
organisations said it tended to run counter to their
business culture.
THE RIGHT TO REQUEST 23
Companies which work closely with on-site unions
(such as Nationwide and the Co-operative Bank)
were more likely to have a policy allowing
employees to be accompanied.
What is the role of the accompanying individual?
In virtually all cases, the role of the accompanying
individual is in line with the requirements of the
forthcoming legislation i.e. to guide, advise and
support the employee and to clarify the issues. BP
look to the accompanying individual to ensure the
employee receives a fair hearing, and that the
decision is based on facts. The only exception is
Unilever, who said the individual can decide whether
he wants moral or legal support.
Do you plan to change any of this in light of the
April 2003 legislation?
No
5
Yes
23
Again, changes were planned to meet the legislative
requirements. For example:
Barclays said they planned to give individuals more
information about how to request flexible working,
options which may be available, what they need to
bear in mind in forming a request and what the
overall process for coming to decisions will be.
BP will provide more detailed procedures for
employees when making appeals.
5 REASONS FOR REJECTING A REQUEST
What reasons have been given for rejecting a
request in the past?
Requests are typically rejected because of a
detrimental impact to the business
In a minority of cases the pattern requested is
inappropriate
Almost unanimously, respondents cited business
interruption, negative impact on customer service,
lack of work during the period employee requests to
work and impact on other staff as the main reasons
for rejecting a request. In some cases, the impact
on staff may be the result of other flexible working
patterns already in place in a department or team
(which mean that the new request cannot be
accommodated).
Of specific concern to the Financial Services sector
was the issue of compliance with regulatory
requirements – mentioned by both Barclays and
Citigroup.
Reasons were also given around Health & Safety and
meeting the requirements of the Working Time Directive.
Nevertheless, the majority of respondents
endeavoured to be as accommodating as possible.
For example, Lloyds TSB said “Flexible working
applications are declined where there is a clear
business detriment. When this occurs, alternative
solutions (other potential working patterns) are
discussed by the concerned parties.”
Will the new legislation make you more likely to
grant a request?
No
21
The majority of respondents stressed their flexible
working policies and practices had been in place for
some time, and were working effectively. The
impact of the legislation was expected to be
minimal. For example:
“No, we have already had our policy in place for
a number of years and improve it annually.”
“The over-riding concern is delivery of service.
Legislation will not change responsibilities around
this. Managers are already encouraged to say yes
whenever possible.”
“No, formalising it will make it more
bureaucratic, raise expectations and perceptions
from non parents that favourable treatment may
be granted to parents.”
Yes
1
Yes, in some areas
1
Possibly/probably
5
A small minority felt the legislation would have a
positive impact. For example:
AMP suggested: “Theoretically it will have no impact
as we currently only refuse for good business
reasons. However, in practice there are always some
managers who are resistant to flexible working. The
legislation should help to convince some sceptics
that they need to give proper consideration to
requests, and the new processes and support
mechanisms will make it more difficult for requests
to be unreasonably refused.”
Respondents also felt the legislation will ensure a
fair process is in place; and one told us: “While we
believe our current process is fair, it will make line
managers think more deeply about whether
adjustments could be made.”
24 THE RIGHT TO REQUEST
6 IMPACT OF THE LEGISLATION
Do you believe your current procedure and
practice satisfies the new legislation?
Yes
9
Mostly
4
No
15
Typically, procedures and practices needed some
fine tuning to satisfy the new legislation. As one
respondent said “Our current practices and
procedures satisfy the new legislation to a degree.
We do, however, recognise the need to place
increased structure and documentation around the
process.”
How do you believe the new legislation will affect
your business?
Minimal impact on most respondents – simply
enhancing existing flexible working policies and
practices
Likely to further increase individual awareness of
flexible working
Some concerns about negative impact of formal
legislation
Since the majority of respondents already facilitate
flexible working they did not foresee any significant
impact to their business. For example:
Addenbrooke’s NHS Trust said: “We have had our
formal flexible working procedures in place since
January 2001. Prior to that time, we had provided
flexible working options for staff for many years and
this has helped recruitment and retention. The new
legislation merely reinforces to our managers the
importance of being able to offer flexible working
options.”
BT is renowned for its flexible working culture. They
saw the impact “only in change of procedure and
management time devising and complying with the
procedural requirements.”
Nationwide’s view was: “We are a flexible
organisation and, other than changes to the
procedure, we do not anticipate a huge effect.”
A number of respondents felt the publicity would be
a good thing in increasing awareness of flexible
working possibilities among employees:
Barclays suggested: “people will start to be more
proactive in requesting flexible working options and
perhaps less likely to take no as an answer”.
Lloyds TSB said: “We believe the legislation will
increase our colleagues’ awareness of flexible
working and we take this as a positive change.”
There were, however, some concerns about
increased bureaucracy and the potential divisiveness
of the legislation.
“Concerned about the negative perceptions of
non-parents and that leaders will be afraid to
push back on requests for fear of formal
reprisals.”
“Will make our current, well-established process
more lengthy, complicated, time consuming.”
“Could increase appeals/grievance where
employees have not understood right applies to
request and does not imply automatic right to
flexible option.”
THE RIGHT TO REQUEST 25
APPENDIX B
Sources of further advice and information
PARENTS AT WORK
Tel: 020 7253 7243
Email: [email protected]
Website: www.parentsatwork.org.uk
1-3 Berry Street, London EC1V OAA.
PARENTS AT WORK offers employer membership to
organisations which includes monthly e-bulletins,
quarterly e-newsletters and discounts on cutting
edge events and legal briefings. You can also offer
individual membership to employees, such as those
becoming parents for the first time.
PARENTS AT WORK free factsheets, available on the
website, include: Childcare options, Childminders,
Nannies, Au Pairs, Nurseries and Nursery Classes,
Maternity Rights, Flexible Working, Working Tax
Credit and Child Tax Credit, Emergency Family Leave
and Parental Leave, Negotiating with your employer,
Factsheet for Fathers, Childcare for children with
disabilities, Benefits and Tax Credits for families
with disabled children, Shiftworking, Debt.
BALANCE AT WORK is the corporate consultancy and
training arm of PARENTS AT WORK. It is a niche
consultancy, specialising in organisational working
practices which bring bottom-line benefits. Our
consultants draw on real breadth and depth in terms
of experience and expertise, ranging from HR and
training to specialist work-life balance,
organisational and personal development skills.
PARENTS AT WORK legal helpline
020 7253 4664
The advice line offers free, confidential advice to
parents on a low income about:
Working family friendly hours
Benefits available to working parents
Rights to parental and emergency family leave
Other organisations that can assist, are:
Maternity Alliance
For information, advice and publications on
maternity and parental employment rights and
benefits.
Information line: 020 7490 7638
Website: www.maternityalliance.org.uk
2-6 Northburgh Street, London EC1V OAY.
Equal Opportunities Commission
For advice and publications on sex discrimination
and employment tribunals.
Advice line: 0845 601 5901
Fax: 0161 838 1733
Email: [email protected]
Website: www.eoc.org.uk
Address: Arndale House, Arndale Centre,
Manchester M4 3EQ
Advisory, Conciliation and Arbitration Service
(ACAS)
For employment law advice.
National Helpline: 08457 47 47 47
Publications helpline: 08702 42 90 90
Website: www.acas.org.uk
Address: ACAS Head Office, Brandon House,
180 Borough High St, London SE1 1LW
Employment Tribunal Enquiry Line: 0845 795 9775
To order booklets on employment tribunals contact
0845 795 9775
or go to www.dti.gov.uk./er/individual/tribunal
© Linklaters 2003
Legal framework written by Simon Kerr-Davis, Linklaters
Guidance for employers written by Lucy McCarraher,
Senior Consultant, BALANCE AT WORK
Right to Request legislation survey undertaken by Anna Allan
Designed by Bridget Orr, [email protected]
Printed by Winfield Print & Design, [email protected]
Published by
PARENTS AT WORK
1-3 Berry Street,
London EC1V OAA
Registered Charity No: 1051936
Company No: 3078388