It is important to recognise that you do not have the automatic right to flexible working and that you cannot insist that your employer accepts flexible working practices. Rather, the Employment Act provisions allow for a set procedure to be followed by you and your employer when you make a request for flexible working - allowing for discussion and hopefully agreement on changes to your working arrangements.
Caring for a child
Employees have a right to request flexible working for the purpose of caring for a child. To qualify you must be an employee (supply agency teachers are not covered) and have at least 26 weeks of service when you apply, and a distance of 12 months between your present application and any previous application. You must also:
- be the mother, father, adopter, guardian or foster parent of an eligible child; or
- be married to or be a partner of such a person and live with the eligible child.
In either case, you must have or expect to have responsibility for the upbringing of the child. An eligible child must be under 17 (or 18 with effect from April 2011).
Caring for an adult
Carers of adults can also request flexible working arrangements. To qualify, you must be an employee who is or expects to be caring for an adult who:
- is your spouse, civil partner or partner; or
- is a parent, parent-in-law, adult child (including adopted children), sibling (including in-laws), uncle, aunt, grandparent or step-relative; or
- falls into neither category but lives with you.
Making an application
You should make your application in writing. This should:
- be signed and dated
- state it is an application to vary your hours
- specify the changes you are applying for and the date on which they will become effective
- explain what effect the changes applied for will have on your employer and how, in your opinion, any such effect might be dealt with
- explain how you qualify for the right to make the application.
It is essential to recognise that, unless you negotiate with your employer for any variation to be temporary, any change agreed will be a permanent change to your contract.
Within 28 days of an application, your employer is required either to notify you of agreement to the variation or to hold a meeting with you. If a meeting is held, your employer must notify you either of their agreement or the grounds for the refusal within 14 days. If the application is refused, you must also be told of the appeal procedure.
If your application is refused
If you appeal you must do so within 14 days of having been informed of the refusal. Your appeal must be heard within 14 days of your written notice of appeal. Your employer must tell you of the outcome of your appeal within 14 days of the hearing.
You have the right to be accompanied at the meeting and the appeal but the right extends only to help from one of your workplace colleagues or an ATL representative. You can go to an employment tribunal to challenge your employer, but only on two grounds: a failure to follow the proper procedure, or that the rejection of your application is based on incorrect facts. If you are successful, the tribunal may make an award of compensation in your favour but the award will be for a maximum of eight weeks' pay and a week's pay is likely to be capped at £430 (as at April 2012).
If the employer's refusal cannot be challenged at the tribunal, you will have to wait 12 months before making another application.