The right to request flexible working was introduced under the Employment Act 2002 (“EA 2002”) and came into force on 6 April 2003. The legislation consists of three elements:

• The amendment of the Employment Rights Act 1996 (ERA 1996) to include new sections 80F-I which set out some of the criteria which an application must satisfy in order to qualify as a Right to Request, the statutory reasons for refusal and the basic procedural requirements.
• The Flexible Working (Procedural Requirements) Regulations 2002, which set out the procedure to be followed in more detail.
• The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 which set out further detail on the eligibility criteria and the remedies available to an employee following an employer's breach.

The right to request flexible working under this legislation (“Right to Request”) is very limited in nature. It consists of:

• A right for eligible employees to request to work flexibly.
• An obligation on the employer to consider that application properly.
• A limited number of grounds on which the employer can refuse the request.

A common misconception is that the legislation has created a right to work part-time; it has not. It simply provides a statutory framework through which a request from an eligible employee to work flexibly must be considered.

To date, most flexible working claims have been made together with claims for direct or indirect sex discrimination; claims which could in fact have been made before the Right to Request came into existence.

The aim of this guide is to provide an introduction to the Right to Request and its relationship with sex discrimination.  We hope that this guide will help you to navigate you way through the legislation and provide you with all the tools you need to comply with your obligations under it, whilst minimising the risk of claims.

Who can make a request?

In summary, to be eligible to make a statutory request for flexible working an individual must:

(1) Be an Employee;

(2) Have 26 weeks continuous service;

(3) Not have made a statutory request to work flexibly in the previous 12 months;

(4) Have responsibility (or expect to have responsibility) for the:

• Upbringing and care of a child aged 16 years or younger (or under 18 if disabled);

or

• The care of an adult spouse, cohabitee or relative;

These requirements are considered in detail below.

Requirement to be an employee

Only employees are able to take advantage of the statutory right. "Employee" is defined as "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment".  The right does not apply to self-employed contractors, consultants or agency workers.

Requirement to have 26 weeks' continuous employment

The usual rules regarding establishing continuity of service apply, so that service with an associated employer, or service prior to a TUPE transfer for example, will be included.

No previous statutory applications in previous 12 months

The rules allow eligible employees to make one statutory request to work flexibly every 12 months.  The purpose of this limit is to prevent an employee whose request has been refused from immediately making a fresh request.  There is however nothing to prevent an employee from making additional informal requests. Whilst the employer will not be obliged to follow the statutory procedure in response to such a request, a refusal without appropriate consideration could amount to indirect sex discrimination.

Responsible for the upbringing and care of a child aged 16 years or younger

(or 18 years old if the child is disabled)

The employee must:

• Be the child's mother, father, adoptive parent, guardian, foster parent, private foster carer or a person who has been granted a residence order in respect of the child; or
• Be the spouse, civil partner or partner of the child's mother, father, adopter, guardian, foster parent, private foster carer or a person who has been granted a residence order in respect of the child; and
• Have responsibility for the child’s upbringing.
• Be making the application in order to care for the child;

Responsible for the care of a specified adult

The employee must:

• Be or expect to be caring for a person aged eighteen or over who is in need of care; and
• Be married to, or the civil partner or partner of the adult in need of care; or
• Be a specified relative of the adult in need of care; or
• Live at the same address as the adult in need of care.

The definition of relative includes a mother, father, adopter, guardian, special guardian, parent-in-law, step-parent, son, son-in-law, step-son, daughter, daughter-in-law, step-daughter, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, uncle, aunt or grandparent, and includes adoptive relationships and relationships of full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption.

The level of care required for eligibility is not defined in the regulations.  The DBERR Guidance suggests that the sort of care-giving activities that carers of adults who request flexible working are likely to be involved in to a greater or lesser extent include:

• Help with personal care (for example, dressing, bathing, using the toilet);
• Help with mobility (for example, walking, getting in and out of bed);
• Nursing tasks (for example, daily blood checking; changing dressings);
• Giving/supervising medicines;
• Escorting to appointments (for example, GP, hospital, chiropodist);
• Supervision of the person being looked after;
• Emotional support;
• Keeping the care recipient company;
• Practical household tasks (for example, preparing meals, shopping, domestic labour);
• Help with financial matters or paperwork.

What kind of change can be applied for?

An eligible employee may request:

• A change to the hours they work.
• A change to the times when they are required to work.
• To work from a different location (for example, from home).

The scope of the legislation effectively includes applications for annualised hours, compressed hours, flexi-time, homeworking, job-sharing, self-rostering, shift-working, staggered hours and term-time working among others.

There are in fact very few limits as to what the employee could request by way of variation.

The Right to Request Procedure

The procedure is highly prescriptive and includes numerous time limits.  However, the penalties for a simple breach of the procedure are relatively limited.

The procedure comprises the following steps:

1. The employee submits a written application setting out the work pattern that they are requesting and specifying their entitlement to make the application in accordance with the EA 2002. The employee is also required to specify any effect that they anticipate the proposed work pattern would have on the employer's business and how such effects might be accommodated or addressed in practice.
2. Within 28 days of receiving the request, the employer must arrange to meet with the employee in order to discuss the application. The employee is entitled to be accompanied by a worker employed by the same employer at the meeting.
3. Within 14 days after the date of the meeting, the employer must write to the employee to either agree to the new work pattern and set a start date, or to provide grounds for the rejection of the application and set out the appeal procedure.
4. The employee can appeal the rejection of a request, but must do so within 14 days of the appeal being rejected.
5. Within 14 days of receiving the appeal notice the employer must arrange a further meeting in order to discuss the grounds of appeal.
6. Within a further 14 days after the appeal meeting the employer must deliver the appeal decision.

The time periods set out may be extended by mutual agreement, but the employer cannot unilaterally extend the time periods save in very limited circumstances, such as where the personnel required to hear the application or appeal are not available and cannot be substituted.

Reaching agreement and granting the request

The employee's request must provide an explanation of what effect, if any, the employee thinks the proposed change would have on the employer and how they feel any such effect might be dealt with.

Although the Right to Request legislation does not require employees to produce evidence of their caring responsibilities, it may however be advisable for employers to request (although not insist on) an outline of the employee's basic caring responsibilities. This will assist the employer with understanding the parameters of the employee's request and if the original request proves impossible to agree to, may assist the parties with reaching a compromise.

If the procedure does result in a new work pattern being introduced, both parties must be entirely clear as to the scope of the new work pattern. Very often, the original request will have evolved through the discussion process and the terms ultimately reached will not be exactly as originally requested. The employer should either issue a new contract setting out the terms as finally agreed or at least produce a letter setting out the terms and expressly amending the contract accordingly with effect from a stated date. The new terms or letter of variation should then be signed by the employee to acknowledge acceptance and retained by the employer.

The new work pattern will be a contractual variation to the employee's employment and will be permanent, unless a further variation is mutually agreed.  There is no express provision within the legislation allowing for a trial period but, in practice, many employers are able to agree with the employee to allow flexible working for a period of say six months followed by a review.  This allows both parties to take stock and ensure that the new working pattern is working as expected and meeting the needs of both employer and employee.

Once the employer has agreed the new working pattern, any further change to the contractual terms (including a change back to the original working pattern) will be a contractual variation and requires the agreement of the employee. Any unilateral change to the contractual terms imposed by the employer will be a breach of contract.

Rejecting or refusing the request

The request may only be refused for one of the reasons specified in the legislation.  These are listed below:

1: Rejection of application on eligibility or procedural grounds.

The request may be refused because it does not meet the statutory criteria. In Hussain v Consumer Counselling ET 1804305/04 a tribunal found that it had no jurisdiction to hear a claim because the claimant's flexible working request did not meet the requirements of section 80F of ERA 1996. It failed to specify the date on which the change should take effect and failed to explain the effect of the proposal on the employer's business and how those effects could be accommodated.

Although technically correct, this decision may give false comfort to employers seeking technicalities on which to reject an application.  An employee who has made a technically deficient flexible working application may still be able to claim indirect sex discrimination or potentially  constructive dismissal.

If the request is technically flawed then the employer should consider explaining this to the employee and suggesting they re-submit a valid request. Many employers find it helpful to point their employees in the direction of the statutory Form FW(A): Flexible Working Application Form available from www.berr.gov.uk. Although use of this form is not compulsory it will help the employee to correctly formulate the request and the employer to consider it properly.

If an employee fails to meet the eligibility criteria then, because of the risk of a sex discrimination claim, the employer would be well advised to nevertheless consider the request and, if it is to be rejected, to reject it on one or more of the statutory grounds.  Doing so has two key benfits for an employer.  Firstly, it will help preserve the relationship between the employer and employee.  Secondly, if a sex discrimination claim is brought the employer will be in a better position to defend itself having carefully considered the employees request and the business case for refusal of the request.

2: Refusal of request on a specified business ground

The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a specific flexible working request. There are eight specific grounds for rejecting a request and only these grounds may be raised as reasons for rejection.

These are:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to re-organise 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.

It is essential that the employer's notice of refusal is dated and states which of the grounds is considered by the employer to apply. A rejection decision must also contain "sufficient explanation" as to why the chosen ground(s) apply. The notice of refusal of an initial application must also set out the appeal procedure.

In selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not on the face of it import any question of reasonableness into this judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be questioned. The requirement to include an explanation as to why the particular ground applies provides the underlying factual basis which the employee may then question.

However, due to the overlap with sex discrimination, employers may be well advised to consider their reasons for refusal in an objective way.  If the original working pattern is indirectly discriminatory, an employer can only defend a sex discrimination claim if it can prove that it had objective justification to insist upon the pattern.

3: Refusal of request on appeal

The appeal meeting provides an opportunity for a further review of the employee's request and for the employee to question in detail why the decision has been reached and whether the grounds for refusal were based on correct facts.

There are no prescribed grounds of appeal so an employee can appeal either the decision itself or the application of the reason relied upon and may raise any other relevant point at the appeal hearing.

If possible, the appeal should be heard by someone who was not previously involved in the process.  As with the initial decision, the rejection of a request on appeal must be in writing, dated and state the ground relied upon.

Complaints and Remedies

An employee may make a complaint to an employment tribunal in relation to the statutory right to request only on very limited grounds:

• The employer has failed to deal with the request in accordance with the procedure by failing to hold a meeting, notify a decision, or offer a right of appeal;
• The employer has refused the request for a reason other than because it considers one of the prescribed reasons applies; and
• The decision to reject the application was based on incorrect facts.

The claim must be presented to the tribunal within three months of the procedural breach or within three months of the date on which the employee is notified of the appeal decision.  The tribunal may order the employer to reconsider the application and may award compensation not exceeding eight weeks' pay (to which the statutory cap on a week's pay applies).

An employee may also bring a claim on the basis that the employer has failed to permit the employee to be accompanied or has failed to postpone a meeting in order to enable the chosen companion to attend. The remedy for either failure is up to two weeks' pay (again, up to the statutory limit).

Employees also have the right not to be subjected to a detriment for exercising their right to bring a claim under the Right to Request Legislation.

A tribunal cannot question the commercial rationale or business reason behind an employer's decision to refuse a request (Webster v Princes Soft Drinks ET 1803942/2004).  Neither can a tribunal substitute its own decision as to whether the request should or should not have been granted. Essentially, the tribunal's role is restricted to:

• Reviewing the procedure followed by the employer.
• Considering whether the request was taken seriously taken into account.
• Considering whether the decision was based on correct facts.
• Considering whether the reason given falls within the permitted grounds for refusal.

However, in Commotion Ltd v Mrs Rutty EAT/0418/05/ZT a tribunal found that Commotion's grounds of refusal for a flexible working application were not made out as there was "not a shred of evidence that proper enquiry and proper investigation" was carried out when dealing with the request. It also held that the tribunal was entitled to examine and decide upon the factual correctness of the employer's asserted ground for refusing a flexible working request, although not its fairness and reasonableness.

The EAT stated that tribunals are entitled to investigate the evidence to see whether the decision was based on incorrect facts:

"In doing so, the tribunal are entitled to enquire into what would have been the effect of granting the application. Could it have been coped with without disruption? What did other staff feel about it? Could they make up the time? and matters of that type."

Sex Discrimination

Since the decision in London Underground v Edwards (No 2) [1998] IRLR 364, it has been open to women whose requests for flexible working were rejected to seek redress under the Sex Discrimination Act 1975 (SDA). There have been very few cases brought under the flexible working legislation, which have not also involved a claim of direct or indirect sex discrimination. For women, this has proved a most effective remedy.

Direct discrimination

The SDA provides protection against both direct and indirect discrimination. Direct discrimination is less favourable treatment on the grounds of sex.  Some employers tend to look more favourably on flexible working requests made by women than those made by men.  Doing so may expose the employer to claims by men.  If a request to work flexibly is not considered seriously because it comes from a man, when the same request made by a woman would have been properly considered by the same employer, then a claim of direct sex discrimination may succeed.

This happened in Walkingshaw v John Martin Group ETS/401126/2000, where a man denied the right to work part-time claimed direct discrimination because women in his firm were regularly allowed to work part-time. However, if the employer would have treated a request made by a woman equally badly, then the claim would not succeed.

Indirect discrimination

Indirect discrimination occurs where an employer has applied to an employee a provision, criterion or practice (PCP) which:

• Applies or would apply equally to both sexes; but
• Which puts one sex at a particular disadvantage to the other, and
• Which puts the particular employee at that disadvantage; and
• Which the employer cannot show is justified as a proportionate means of pursuing a legitimate aim.

A recent example of an indirect discrimination claim is Giles v Geach and another trading as Cornelia Care Homes, ET 3100720/05. The employer in this case failed to show that the requirement to work full time (or at least 25 hours) in the office was objectively justified. This was particularly so, because they had raised no complaints when the employee had worked from home in the past and were intransigent when she suggested alternative options. Although this is a first instance decision and therefore not binding on future tribunals, it provides a useful illustration of a number of important principles.

As noted above, the mere fact that an employer is able to identify one of the statutory grounds to refuse a flexible working request will not, of itself, prevent  a successful indirect discrimination claim.  For example, in Caswell v Advance Travel Partners UK Ltd ET 2304832/2000 a tribunal rejected a flexible working claim, but upheld an indirect sex discrimination claim.  The employer had decided that a claimant working fewer hours could potentially have a detrimental effect on customer service. The tribunal observed that:

"It may be that this answer would be sufficient for the purposes of satisfying [the statutory grounds to refuse a flexible working request], but it was not a reason with any meaning or which suggests to us that [the manager] approached the issue with an open mind."

Given the very real possibility of sex discrimination claims flowing from rejected flexible working requests, an employer faced with a flexible working requests should be mindful of both tests when considering the merits of the application. If you would like to discuss flexible working with us please call us on 01562 514867, email This e-mail address is being protected from spambots. You need JavaScript enabled to view it or contact us using the contacts page of our website.