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Ask Us Anything About Flexible Working

04/10/2017 13:51

Flexible working. It throws up as may questions as it does answers. But which questions?

It's National Work Life Week - and we are running a special advice session when you can ask us anything about flexible working. But we also took a look at the most popular pieces of advice on our website to highlight which aspects of flexible working parents are struggling with.

Parents are often not quite sure how to get started on flexible working and so it's no surprise that our sample letter to request flexible working is one of our most popular pages.

How do you make a request for flexible working, and what do you do if your employer ignores it?

Our advice: Anyone can ask informally for a change to their days or hours, but if you're an employee with 26 weeks' service you have a statutory right to request flexible working, and your employer is under a legal duty to reasonably consider that request. So first check your request meets all the criteria for being a statutory request, and, if you're getting nowhere, write to remind your employer about their legal duty. If you can't get a response, consider an internal appeal or complaint. Our video helps explain your right, and our advice pages set out when your employer can reasonably turn down a request for a statutory business reason.

The next most popular query is about the process; what information should I give my employer, and what happens next? When making a statutory request, employees must explain the potential impact of their request on the business, and this can be particularly hard if others are already working flexibly. We're often told "My colleague successfully requested to work part time but my employer won't let me work part time - surely that's unfair?"

Our advice: Not necessarily - each flexible working request should be considered on its merits. Once an employer allows one person to work part time, the business case changes and they may not be able to offer the same flexibility to everyone. Employers can treat people differently, if it is not unlawful discrimination.

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So when is it discrimination to turn my request down?

Our advice is that it may be unlawful direct discrimination to refuse a man flexible working, just because he's a man. But a more complex argument can be used if women with childcare responsibilities are refused any flexibility. It has been successfully argued that, because women are more likely to have childcare responsibilities than men, requiring women to work long or inflexible hours can amount to indirect sex discrimination. However, if an employer has a good business reason, and can show that their actions are proportionate, indirect sex discrimination may be justified.

The next most common request is advice on flexible working after maternity leave. We're often asked, "do I have a right to go back part time after maternity leave?"

Our advice: no - you are likely to have a right to request flexible working, but your employer can turn it down. Your right to return after maternity leave is to the same job on the same terms and conditions as the job you did prior to your leave. Make sure you ask for any changes well before you are due back to work - as it can take up to three months for a decision to be made. And be ready to negotiate - if two days won't work, how about three? Would the employer consider a job share? If you're asking for childcare reasons, your employer may have to have a sound business case for refusing your request - to avoid an indirect sex discrimination claim.

Finally, parents want help negotiating a flexible working pattern. It isn't easy to know what the impact of a flexible working request would be, or why an employer might say no.

Our advice is to try and put yourselves in the employer's shoes and come up with a solution, rather than a problem. For example, if you want to work three days a week, tell your employer where they might search for a job share partner (suggest they search internally or advertise externally) or how they might reorganise the work among existing team members. If you want to change your shift pattern, can you find a colleague who would be willing to swap with you? Check if your employer allows you to appeal a refusal, so you can raise further points or suggest different ways of meeting concerns they might have.

A related topic is what to do if an employer imposes a change of hours. For example, "My manager says that it's only fair if everyone works the new early shifts but I can't get anyone else to do childcare in the morning before school. Can they insist I change the hours I've worked for three years"?

Our advice is no - this is a variation to your contract and should only be changed with your agreement. You may have a claim for breach of contract and (for women only) indirect sex discrimination. Explain why you can't change to the manager - they may not be aware of your childcare responsibilities. Find out what the reason is for the change, and whether your employer can justify this - have they explored other ways of organising the rota? Employers often argue that treating everyone the same is "only fair" but treating people equally, and avoiding discrimination, means taking account of their different circumstances. Women who need flexibility for childcare reasons may be able to argue it is indirect sex discrimination to insist they work a different pattern, and an employer would need to show that they have a legitimate business reason for the change, and that it is proportionate to ask everyone to do the shifts, to successfully justify indirect sex discrimination.

To mark National Work Life Week (3rd - 6th October 2017) Working Families Legal Advice Service is running 'Ask us anything about flexible working' on Friday 6th October. Our helpline will be open 9am to 5pm so call us on 0300 012 0312 or email advice@workingfamilies.org.uk with any queries.

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