Guidance for Managers
Section A: Requests for Flexible Working to Care for a Child or Adult
Section B: Requests for Flexible Working for Other Reasons
Section A: Requests for Flexible Working to Care for a Child or Adult
The University takes all applications from staff to make changes to their hours, times and places of work seriously, however, under the Employment Act 2002 and the Work and Families Act 2006 those who are eligible have a new statutory right to request flexible working to enable them to care for a child or adult.
The statutory procedure for considering applications must be followed when a request is received under the right. The procedure is set out below.
Please contact your HR representative for advice if you receive such a request.
Summary of the Right
The right to request to work flexibly aims to encourage employees and employers to consider flexible working patterns and to seek solutions to requests that suit both parties. It does not give employees an automatic right to change their working patterns.
The right imposes a statutory duty upon employers to consider applications for flexible working seriously and employers will only be able to refuse applications for one of the nine “business grounds” specified in the Act.
Eligible employees will be able to request:
- a change to the hours they work
- a change to the times when they are required to work
- to work from home.
Applications will be made to the Head of Department or Head of Section who will be best able to judge how a change in working pattern may affect the work of the individual and department or section. Please note that flexible working arrangements already in operation in other parts of the department or section do not necessarily create a precedent, all requests are dealt with on a case by case basis.
An accepted application will mean a permanent change to the employee’s own terms and conditions of employment.
An employee will be able to make a complaint to an employment tribunal if there is a breach in the procedure as set out in the regulations, or if a decision to reject an application was based on incorrect facts.
Please contact your HR representative before having a meeting with a member of staff who is considering making a request, or if you receive a formal request for flexible working.
Please note that it could take several months to consider requests and implement a new work pattern, and requests from an individual will be limited to one a year.
Benefits of flexible working
The use of flexible working patterns can be of benefit to both employees and employers. Various forms of flexible working already exist within the University, for example, job share, annualised hours, flexitime, and term-time working.
Benefits to the University can include:
- Improved efficiency and cost savings
- The extension of service provision outside of normal office hours
- Ability to respond to changing demands throughout the academic year
- Recruitment and retention of high quality staff
- Encouraging equality of opportunity and reflecting diversity
- Reduced absenteeism
- Increased loyalty and motivation
Such potential benefits should be considered when a reviewing a request.
Which employees have a right to request flexible working?
In order to make a request under the new right an individual will:
- be the carer of a child or an adult who is a spouse, partner, civil partner, relative or adult in need of care living at the same address,
- have been employed with the University continuously for 26 weeks at the date the application is made,
- be making the application to enable them to care for a prescribed individual,
- not have made another application to work flexibly under the right during the past 12 months.
The employee will have to meet one of the following conditions:
- be the biological parent, guardian, adopter or foster carer of the child,
- be married to a person within (1) and live with the child,
- be the partner of a person within (1) and live with the child,
- be the spouse, partner, civil partner or relative of an adult in need of care,
- be living at the same address as an adult who does not meet the criteria in 4) and who is in need of care.
Please note that this right applies equally to same sex couples
The application process
The initial onus on taking forward an application will be on the employee. He/she must put the request in writing using the Application for Flexible Working form, available online, or from the HR Office.
The application asks the employee to declare that they meet the above criteria. It also asks that they:
- Specify the type of flexible working pattern applied for and the date on which it is proposed the change should become effective
- Explain what effect, if any, the employee thinks the proposed change would have on the department or section and how, in their opinion, any such effect might be dealt with
- Explain how the employee satisfies the requirements relating to the relationship with the child
How should I respond to a request for flexible working?
Please inform your HR representative of any such requests. Forms are provided for use when responding to an applicant at each stage of the process.
Within 28 days after receiving an application, you must hold a meeting with the applicant to consider the request. During the meeting you and the applicant will explore any potential issues and, if appropriate, consider alternative working patterns.
The Head of Department or Head of Section who has received the application will be responsible for arranging the meeting and ensuring that it takes place within 28 days. The meeting will be chaired by the Head of Department or Section but other individuals who work closely with the applicant may be invited if they are better able to judge the feasibility of the request.
The applicant will be able to bring a companion to the meeting if desired for support. The companion must also be employed by the University, and may be a trade union representative. The companion is able to address the meeting and to confer with the applicant during it, but they may not answer questions for the applicant.
Can the time limits be extended?
The 28 day time limit can be extended only where the individual who would be expected to consider the application is absent because of annual leave or sick leave. In such circumstances the Head of Department or Section will have 28 days to arrange the meeting from the day of their return back to work.
If the companion of the applicant is unable to make the initial meeting, the applicant must seek to rearrange the meeting for a time that is convenient to everyone, to take place within 7 days of the date of the initially proposed meeting.
Time limits may be extended if both you and the applicant agree, for example, you may both conclude at the meeting to consider the request that an alternative working pattern is more suitable, but to ensure that it can be implemented you may need further time to explore the work pattern with Human Resources.
In each case the Flexible Working Extension of Time Limit form should be used.
How can I prepare for the meeting?
It may help to:
- Draft an agenda of the issues you want to discuss
- Inform the applicant of anyone you have asked to join the meeting
- Ask other colleagues if they would want to cover any extra hours that may be created as a result of granting the request
- Familiarise yourself with information on flexible working.
- Speak to your HR representative.
Making the decision
You should first discuss your response with your HR Representative.
Within 14 days of the meeting with the applicant, you must notify them of your decision in writing. An accepted application will mean a permanent change to the applicant’s own terms and conditions of employment.
If you do agree to the proposed change, you should confirm this by using the Flexible Working Application Acceptance form.
In accepting the proposal, you are committing the University as the employer to implement a trial period (of up to 3 months) to ensure that any changes are acceptable and that such changes do not adversely affect any business processes. If there are any concerns at the end of the trial period these should be discussed with HR.
Requests concerning teaching hours
If a request is submitted by a member of staff that concerns a change to teaching hours please contact the Timetable Manager in Student Planning and Assessment to discuss the request before making a final decision (extention 46218).
In what circumstances can an employer reject a request for flexible working?
If you decide to refuse an application please contact your HR representative before you notify the applicant of your decision.
Employers are only be able to refuse applications for one of the following nine “business grounds”:
- burden of additional costs;
- detrimental effect on the 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 period the employee proposes to work;
- planned structural changes; and
- such other grounds as the Secretary of State may specify by regulations.
You should notify the applicant in writing using the Flexible Working Application Rejection form, specifying the business grounds and the reasons why they apply in these circumstances.
Is there any right of appeal if an application for flexible working is rejected?
If the request is refused, the applicant has 14 days to appeal from the date of notification of the decision. There are no restrictions on what may constitute grounds for making an appeal.
A further meeting must be held to consider an appeal within 14 days after the date of receipt of the appeal.
Once again the applicant has the right to be accompanied at this meeting if desired, for support. The companion must also be employed by the University, or may be a trade union representative. The companion is able to address the meeting and to confer with the applicant during it, but they may not answer questions for the applicant.
The appeal should be made to the HR Office using the Flexible Working Appeal Form.
The meeting will be chaired by another manager or senior member of the University who has had no previous involvement in the process.
The applicant must be notified of the outcome of the appeal meeting in writing within 14 days after the date of the appeal meeting.
Are there any circumstances in which the procedure no longer has to be followed?
The regulations provide for circumstances when employers may treat an application as withdrawn and are no longer under a duty to consider requests any further.
In the majority of such circumstances these will be where the applicant notifies the employer that they are withdrawing their application in writing using the Flexible Working Notice of Withdrawal form. Where this is not forthcoming, you should write seeking clarification that the applicant has withdrawn their application.
If an applicant fails to meet their responsibilities under the procedure and it is fair to assume that the application is no longer being pursued, the application may be treated as withdrawn. The draft regulations state these circumstances to be:
- Failure to attend the meeting to discuss the application or the appeal meeting more than once (i.e. fails to attend two meetings)
- Unreasonably refusing to provide information required in order to assess whether the contract variation can be granted. For example, to agree to a request to work at home the employer may insist on a health and safety assessment of the home environment.
Are there any consequences for not following the statutory procedure?
Essentially an employee will be entitled to make a complaint to an employment tribunal wherever there is a breach in the procedure that is not a result of the application being rejected, withdrawn or dealt with through agreement, or if a decision to reject an application was based on incorrect facts.
Where a case is taken to an employment tribunal the employer will need to demonstrate that they have gone through every step of the above procedure. The tribunal will verify whether the employer has followed all the proper procedures and will examine any disputed facts relating to why the business grounds for refusal apply. The legislation does not give tribunals the power to question the commercial validity of the employer’s decision. The tribunal may send the case back to the employer for reconsideration and may also order compensation.
Please note that employees are protected from suffering a detriment or dismissal for making an application under the act. Employees who believe that they have suffered a detriment can make a complaint to an Employment Tribunal, regardless of their length of service.
If you have any further questions about the right to request flexible working, please contact your HR representative.
Section B: Requests for Flexible Working for Reasons OTHER THAN care for an child or adult
If a member of staff wishes to apply for a change in his/her working pattern but it is not connected to the provision of care for a child or adult, or if he/she does not meet the eligibility criteria above in section A, other legislation may give staff the right to have a request for change to their hours, times or location of work. The Equality Act provides additional legal protection for employees in a variety of ways, including those listed below, and you should carefully consider all applications from staff to make changes to their hours, times and places of work, and the application should be treated as equally important as other requests.
To satisfy the Equality Act, flexible working requests must be considered by you where:
1. making reasonable adjustments via flexible working will remove barriers for disabled people and thus avoid discrimination arising from disability;
2. requests for changes to hours of work or flexible working are on the basis of an association with a protected characteristic*
3. requests relate to a worker's religion or belief;
4. requests relate to a worker's gender re-assignment
The Application Process
The initial onus on taking forward an application will be on the employee. He/she must put the request in writing using the Application for Flexible Working form, available online or from the HR Office.
- Application for Flexible Working (last modified: 23 October 2012)
Further information and advice is available from the University's Diversity Adviser or your HR representative.
*Protected characteristics (as defined by the Equality Act 2010)
Age - where this is referred to, it refers to a person belonging to a particular age (eg 32 year olds) or range of ages (eg 18-30 year olds).
Disability - a person with a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities.
Gender reassignment - the process of transitioning from one gender to another.
Marriage and civil partnership - marriage is defined as a 'union between a man and a woman'. Same-sex couples can have their relationships legally recognised as 'civil partnerships'. Civil partners must be treated the same as married couples on a wide range of legal matters.
Pregnancy and maternity - pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth and is linked to maternity leave in the employment context. In the non-work context. protection against maternity discrimination is for 26 weeks after giving birth and this includes treating a woman unfavourably because she is breastfeeding.
Race - refers to the protected characteristic of race. It refers to a group of people defined by their race, colour and nationality (including citizenship) ethnic or national origins.
Religion and belief - religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (eg Atheism). Generally, a belief should affect your life choices or the way you live for it to be included in the definition.
Sex - a man or a woman.
Sexual orientation - whether a person's sexual orientation is towards their own sex, the opposite sex or to both sexes.