Flexible Working: The new rights

A recent DTI work-life balance study found that twice as many British employees would prefer shorter working hours to winning the lottery, but 72% had no access to formal flexible working practices. The chances of many employees to secure flexible working may improve with a new right for qualifying employees to request flexible working coming into force on 6 April 2003.

Employers must remember that the new rights run alongside, but do not replace, existing legal rights. Women may be able to claim unlawful indirect sex discrimination if, for example, they are not allowed to work part-time. A man could claim direct sex discrimination if refused part-time working in circumstances where a woman would be allowed to work part-time. The duty to make reasonable adjustments for disabled employees may include adjustments to working hours, for example, the flexibility of a later start for someone whose medication makes them drowsy some mornings. Compliance with this new statutory procedure is not necessarily the end of the story.

What is the new right?

The new right enables qualifying employees to request a contract variation in respect of

• the hours the employee is required to work
• the times when the employee is required to work
• where, as between the employee's home and a place of business of the employer, the employee is required to work.

The contract variation requested must be for the purpose of enabling the employee to care for a child under six or, if disabled, under eighteen. The application must be made before the fourteenth day before the day on which the child concerned reaches the age of six or, if disabled, eighteen.

The employee has the right to have the request considered seriously, in accordance with the statutory procedure, but the new right does not give any employee a right to a contract variation.

Who qualifies for the new right?

The new right applies only to employees and does not apply to agency workers. Employees must have at least 26 weeks' continuous service with the employer before making an application for flexible working.

The employee must be

• the mother, father, adopter, guardian or foster parent of the child to be cared for, or
• married to, or the partner of, such a person, and must have, or expect to have, responsibility for the upbringing of the child.

A partner is someone of the same or opposite sex who lives in an enduring family relationship with the child and the mother, father, adopter, guardian or foster parent of the child but is not a relative of the mother, father, adopter, guardian or foster parent.

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