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Legal lessons - receptionist says flexible working is her right

Advice on a tricky practice problem from barristers Michael Salter and Chris Bryden

Advice on a tricky practice problem from barristers Michael Salter and Chris Bryden

As an employer it is generally up to you and your employees to agree to what hours your staff work. However the law does impose certain obligations on employers to consider applications by parents of children under the age of six, or those with disabled children under the age of 18, to work flexibly. There are also legal limits to the grounds on which such applications may be refused. In April 2007 this right was extended further to cover carers of certain adults as well. (On 6th November 2007 the Government announced plans to raise the age of children in respect of whom the request can be made, and it may eventually extend to all families with children of school age.) This right applies to men as well as women.

There is however no automatic right to work flexibly, and the law is aimed at striking a balance between the employer and employee. The usual changes, when considering flexible working, which are sought by employees are: a variation of times of work; changes to hours of work; or even changes to place of work (e.g. to allow for home working).

To have her application considered, the receptionist will need to satisfy certain qualifying criteria. She must have been an employee of the Practice for at least 26 weeks, have a child under the relevant age, be making the application to enable her to care for the child, and to have made no previous application to work flexibly within the last 12 months.

The receptionist should set out her request in writing. The request should be as clear and specific as possible, as if it is accepted it will amount to a variation to her contract of employment.

Within 28 days of making her request a meeting should be held between her and the Practice. The aim of this meeting is to discuss the proposal in detail and consider other alternatives to her proposed variation. The employee is entitled to be accompanied at this meeting. Do not fall into the trap of thinking that the situation must be resolved at the meeting. It does not. Instead, use the meeting to explore the options presented and other alternatives: for instance what will happen after the child gets older - will the receptionist revert to the original times of work?

Practically, it is advisable to forewarn the employee of the structure of the meeting: publish an agenda, tell the employee who will be attending the meeting and make some preliminary enquiries into the proposal (other members of staff may be happy to increase - or alter - their hours of work to accommodate the proposals). Keep notes of this meeting.

Within 14 days of the meeting you should write to the receptionist and set out your decision. This is a strict time limit that can only be extended with the employee's consent. Either accept the changes and inform her of the start date, or reject the proposal and set out the reason why it has been rejected. The proposal can be rejected only on specific grounds – i.e. the cost burden to the practice, a detrimental effect on the employer's ability to meet customer demand, a detrimental effect on performance quality, and a lack of work during the hours the employee wishes to work, or because of any planned structural changes the practice had intended to implement.

The employee can appeal a refusal. This must be done within 14 days and should be in writing, setting out the grounds. Within 14 days of receipt of the appeal an appeal meeting must be held, and again the employee is entitled to be accompanied, and minutes of the meeting should be taken. Within 14 days of the meeting the employee should be told in writing of the result of the appeal.

If the matter is not resolved after the appeal then the employee can make a complaint to an Employment Tribunal. The Tribunal has the power to award eight weeks' pay (currently capped at £310 a week) and order a reconsideration by the employer of the application if it finds that the complaint is justified.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor

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