Flexible Working

(The Employment Act 2006 Sections 66, 99-102, 122 and the Flexible Working Regulations 2007)

What is flexible working?

Traditional patterns of working involve an employee attending at the employer's place of business (office, shop or factory) to work for fixed hours on fixed days of the week. 'Flexible working' involves different patterns of work - working at different hours, or on different days or working from home.

The right

An employee who has been continuously employed for at least 26 weeks has the right to apply to his or her employer to request flexible working in order to enable him or her to care for a dependant. The right applies regardless of whether there is any such right in the contract of employment.

The Act and Regulations do not give a right to flexible working: however, they oblige the employer to give the request proper consideration, and prevent the employer from treating an employee unfairly for making the request.

A request may not be made within 12 months of a previous request.

An 'employee' for this purpose does not include an agency worker.

A 'dependant' is —

• the employee's husband or wife or civil partner;
• the employee's child, if under the age of 6;
• the employee’s disabled child under the age of 18 (a child is 'disabled' if he or she is entitled to Disability Living Allowance);
• the employee's parent; or
• a person who lives in the same household as the employee, but is neither an employee, tenant, lodger or boarder of the employee, nor a child who is excluded by age from eligibility.

An employee can request:

• a change in working hours;
• to work from home.

If a request is accepted, it will lead to a permanent change in the employee's terms and conditions of employment.

The Procedure

A request must be made in writing and state:

• that it is an application for a change in the terms and conditions of employment; the change requested and the date when it should take effect;
• what effect the employee thinks the change will have on the employer and how that effect might be dealt with;
• how the employee meets the conditions as to relationship with the dependant to be cared for.

Unless the employer notifies the employee within 28 days that the request is agreed to, the employer must arrange a meeting with the employee within that period to discuss the request. The employer must give the employee notice in writing within 14 days of the meeting, either agreeing to the change and the starting date or else refusing the request. Where the request is refused, the notice must state the grounds of refusal and inform the employee of the right of appeal.

The employer may refuse a request only on one or more of the following grounds:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff, or to recruit additional staff;
• detrimental impact on quality or performance;
• insufficient work at the time the employee proposes to work; and
• planned structural changes.

The employee may appeal against refusal of the request, and the employer must hold a further meeting to discuss the appeal within 14 days. The employer must notify the employee of the decision on the appeal within 14 days of the meeting. An employee is entitled to be accompanied at any meeting by a fellow-worker of his or her choice, who may address the meeting and confer with the employee. The fellow-worker is entitled to take time off with pay for this purpose.

Protection against detriment

The employee has a right not to suffer detriment for seeking flexible working, exercising any right against the employer, bringing Tribunal proceedings, or alleging a ground for bringing proceedings. Dismissal for any of those reasons is automatically unfair.

The right may be enforced by complaint to the Employment Tribunal within 3 months of the action in question (or the last of a series of actions), but the Tribunal can allow a complaint out of time if there was a good reason for the delay. Where the claim is successful the Tribunal makes a declaration, and may award compensation of an amount which it considers just and equitable, having regard to the employer's infringement and the employee's loss.

Enforcement of the right

Except where the request is disposed of by agreement or withdrawn, the employee may make a complaint to the Employment Tribunal that:

• the employer has not followed the above procedure;
• the employer's decision was based on incorrect facts.

A complaint may not be made until the employer notifies the employee of the decision on appeal, or fails to hold a meeting or to notify a decision within the time allowed, and must be made within 3 months of the appeal decision or failure, but the Tribunal can allow a complaint out of time if there was a good reason for the delay. Where the claim is successful the Tribunal makes a declaration, and may order the employer to reconsider the request and award compensation of up to 8 weeks' pay.

Sex Discrimination

The Employment (Sex Discrimination) Act 2000 (ESDA) prohibits direct and indirect discrimination. Indirect discrimination occurs when an employer applies a condition or requirement which, although applied equally to both sexes, is such that a considerably smaller proportion of women than men (or men than women) can comply with it and which the person applying it cannot show to be justifiable. More women than men have family responsibilities and wish to work part-time and therefore a policy that everyone works full-time may amount to indirect sex discrimination as it would put women at a particular disadvantage.

A female employee denied flexible working may be able to present a claim of indirect sex discrimination under ESDA instead of or as well as a complaint under the Flexible Working Relations. No minimum service requirement is necessary to bring such a claim.

In addition, where an organisation offers flexible working to female employees only, male employees may be able to bring claims of direct sex discrimination in certain circumstances.

Examples of flexible working

(i) Annualised hours

Annualised hours means working time organised on the basis of the number of hours to be worked over a year rather than a week. This can be used to fit in with peaks and troughs of work. Pay is usually calculated on the hours worked in each pay period (week or month). Compressed hours means allowing an employee to work a total number of agreed hours, but over a shorter period than the usual working week, e.g. working a 35-hour week over 4 rather than 5 days. Pay is usually calculated as for an ordinary working week, i.e. the employee would not be paid overtime for the agreed extra hours worked in any one day.

(ii) Flexitime

Flexitime means allowing an employee to work different hours on different days, provided that he or she works a certain number of hours in a given period (e.g. 7½ hours in a day, or 37½ hours in a week). An employee is usually required to be at work during certain 'core' times (e.g. 1030-1200 and 1330-1500). Pay may be calculated at a weekly or monthly rate, or on the hours actually worked.

(iii) Homeworking

Homeworking may involve working only at home, or partly at home and partly at the employer's place of business. Pay is usually calculated on the hours actually worked. (Employers are required to carry out a risk assessment of homeworking, identifying any hazards and deciding whether steps have been taken to prevent harm to employees or anyone else who may be affected by their work. Further details about risk assessments are available from the Health and Safety at Work Inspectorate

(iv) Job-sharing

Job-sharing typically involves two people, each employed part-time, but working together to cover a full-time post. Each receives pay for the hours he or she works.

(v) Shift working

Shift working gives employers the scope to have their business open for longer periods than a normal working day. Pay is usually based on the hours worked, sometimes with extra pay for work at unsocial hours (although agreed flexible working arrangements may mean that a shift premium is not needed).

(v) Shift working

Staggered hours allow employees to start and finish their day at different times. This is often useful in the retail sector, for example, where it is important to have more staff at peak times but fewer at off-peak times. Pay will usually depend on the total hours worked, rather than the time at which they are worked.

(vii) Term-time working

Term-time working allows employees to take unpaid leave of absence during the school holidays, or to work only in school term time.

Further information

Further information on the right to request flexible working in the Isle of Man can be found in the Guide Flexible Working - the Right to Request and the Duty to Consider.

The UK Government website produces some useful guidance for employers on flexible working. Please be aware that the legislation in the UK differs from the Isle of Man, however the good practice advice is the same.