THE RIGHT TO REQUEST

Transcription

1 THE RIGHT TO REQUEST An employers guide to implementing the flexible working legislation

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3 THE RIGHT TO REQUEST 1 CONTENTS Introduction 2 Flexible working: legal framework 3 Guidance for employers 9 Ground rules for flexible working 10 Flexible working options 11 Applications 12 Schedule 16 Linklaters/PARENTS AT WORK legislation survey 19 Sources of further advice and information 25

4 2 THE RIGHT TO REQUEST Introduction PARENTS AT WORK and Linklaters have produced this topical guide to support employers as they meet the challenge of the new Employment Rights legislation. As our original research shows (Appendix A), employers are concerned that the new legal process will be more unwieldy than their current practice on handling flexible working requests. They wish to comply with the legislation, whilst continuing to offer the range of working options that have proved successful for their businesses and their employees. So, here is a user-friendly analysis of the new legislation, accompanied by practical advice on how to implement it and, indeed, a wider flexible working policy. These are illustrated by case studies of current successful practice and a survey of leading organisations response to the legislation. We welcome this legislation, and hope that this guide will help employers to see it as an opportunity to reconsider creative flexible solutions, which will improve their employees lives, as well as the way they run their businesses. Raymond Jeffers and Simon Kerr-Davis Sarah Jackson Chief Executive, PARENTS AT WORK

5 FLEXIBLE WORKING: LEGAL FRAMEWORK THE RIGHT TO REQUEST 3 From 6 April 2003 parents of children aged under six or of disabled children aged under 18 will have a statutory right to apply to work flexibly. Employers will have a duty to consider applications seriously. In this section we set out the basic legal framework within which the new right will operate. We also identify key issues which employers will need to address when drafting and operating flexible working policies. We also indicate those areas where the legislation is unclear and where clarification from either the DTI or case law will be required: the aim being to suggest methods of addressing these issues without becoming a test case! 1 Basic principles The new right will allow qualifying employees (see below) to request a change to terms and conditions of employment relating to hours of, times of, and place of work, if this is for the purpose of enabling them to care for a child with whom a specified relationship exists. It is important to note that, once agreed, any change will be permanent. As the DTI puts it, the new law does not provide an automatic right to work flexibly but employers will have a statutory duty to consider their applications seriously. Qualifying employees will have the right: to apply to work flexibly; to have their applications considered seriously in accordance with the set procedure (see below) and refused only where there is a clear business ground for doing so; to have a companion at meetings with the employer to discuss the application; to have a written explanation explaining why an application is refused; to appeal against an employer s decision to refuse an application; to take a complaint to a tribunal in certain circumstances. Employers will have the right: to reject an application on specified business grounds; to seek the employee s agreement to extend timescales where necessary; to treat an application as having been withdrawn in certain circumstances. 2 Where are the new provisions set out? The legal right was introduced in the Employment Act This inserted a new part 8A, S80F-I into the Employment Rights Act The details were added in two sets of regulations: The Flexible Working (Procedural Requirements) Regulations 2002 and The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 ( The Remedies Regulations ). The DTI has published a guide to flexible working, together with a set of best practice forms to use when requesting/granting/refusing flexible working. See 3 Who can apply? To be eligible to make a request under the new right an individual must: (i) be an employee; (ii) have worked with their employer continuously for 26 weeks at the date the application is made; (iii) make the request in relation to a child under six (or under 18 in the case of a disabled child) no later than two weeks before the child s 6th /18th birthday; (iv) have or expect to have responsibility for the child s upbringing; (v) be making the application to enable him/her to care for the child; (vi) not be an agency worker; (vii) not be a member of the Armed Forces; and (viii) not have made another application to work flexibly under the right during the past 12 months. The right is conferred on employees and does not cover broader categories of worker, such as independent contractors or agency workers. The condition that an employee cannot reapply within a 12 month period also has some interesting consequences: where a first request to work flexibly is granted by an employer but the employee s circumstances change within 12 months of the first application being made, the employee cannot make a second application to reflect the changed circumstances. If the employee does make a second application within a 12 month period, then the

6 4 THE RIGHT TO REQUEST employer would be entitled to reject the application on the grounds that the employee is not eligible to make the second request. The employer could of course consider the second application if it chose to, but is not obliged to do so under the legislation. 4 When must the application be made? The application must be made no later than two weeks before the child s 6th birthday or 18th birthday in the case of a disabled child. The age cut-off was chosen on the grounds that it is the parents of children under school age, those fitting in with new school routines and parents of disabled children who are under particular pressure when attempting to combine family and work commitments. 5 What form should the application take? There is no prescribed application form, although the DTI has produced best practice forms to cover applications, grants and refusals of flexible working requests. However, the legislation does set out various requirements. The application must: (i) state that it is an application made under the statutory right to request flexible working; (ii) specify the change applied for and the date on which it is proposed the change should become effective; (iii) explain what effect, if any, the employee thinks making the change applied for would have on his/her employer and how, in his/her opinion, any such effect might be dealt with. This puts the onus on the employee to ensure that the application is carefully thought out. The DTI guidance states that this doesn t mean that an employee is expected to know every factor that might influence the employer s decision, but he/she should show that factors that could influence the employer s decision have been considered; (iv) explain how, in respect of the child concerned, the employee meets the conditions as to relationship discussed in the next section; (v) an application must be made in writing. Here in writing includes writing delivered by means of electronic communication, so applications sent by fax or are acceptable; (vi) the application must be dated; and (vii) an application must state whether a previous application has been made by the employee to the employer and, if so, when. This should help employers to avoid repeat applications. An employee may not make a further application to the same employer within 12 months. These requirements are set out in S80F(2) ERA and in the Remedies Regulations. 6 The relationship test To make an application an employee must show that he/she has a qualifying relationship with the child in respect of whom the application is made. An employee must also have, or expect to have, responsibility for the upbringing of the child. The qualifying relationships are that the employee must be either: (i) the mother, father, adopter, guardian or foster parent of the child; or (ii) married to, or the partner of, the child s mother, father, adopter, guardian or foster parent. The definitions in the legislation make these requirements difficult to understand. Foster parent and guardian have technical meanings that can be found in Regulation 2(1) of the Remedies Regulations. An adopter is a person who has been matched with a child for adoption. Partner is defined as somebody who lives with the child and the mother, father, adopter, guardian or foster parent in an enduring family relationship. This can be somebody of the same sex. But a partner cannot be a parent, grandparent, sister, brother, aunt or uncle of the mother, father, adopter, guardian or foster parent, whether of full or half blood. In the case of an adopted person, this applies to such as those relationships as would exist but for the adoption and includes the relationship of a child with his adoptive, or former adoptive, parents but not other adoptive relationships. The words lives with the child in the definition of partner cause particular difficulty. An employee who is a mother, father, adopter, guardian or foster parent of the child ( legal parent ) need not live with the child. By contrast, someone who is a partner of a legal parent must live with the child

7 THE RIGHT TO REQUEST 5 and the legal parent. But live with the child is not required if married to the legal parent. One can foresee disputes over the concept of live with the child. For example, take a partner who lives with a child s mother but the child is split between two parents. If the child is, say, with the mother one day a week or one week in two is the living requirement met? They must also be in an enduring family relationship. Are they? Guidance from the DTI would be helpful. Employers may be concerned over the potential for abuse by employees. For example, there is no right or procedure allowing an employer to verify whether an employee satisfies the relationship conditions, or has responsibility for the upbringing of the child, or that the purpose in applying for flexible working is to enable the applicant to care for the child. There may be a technical argument that no valid application has been received as the employee has failed to show that he is a qualifying employee, but employers are advised to take a liberal interpretation of the relationship qualification until such time as further guidance is released by the DTI. 7 What changes may be requested? Eligible employees will be able to request: (i) a change to the hours they work; (ii) a change to the times when they are required to work; or (iii) to work from home. The DTI has explained that this covers annualised hours, compressed hours, flexitime, home working, job-sharing, self-rostering, shift working, staggered hours and term-time working. Parents are expected to request a variety of options, from compressing a five-day week into three or four days flexitime to home working. Further information can be found at 8 How will the procedure work? In simple terms, there is a 6-stage procedure that must be followed: (i) the employee must make a considered application in writing. DTI guidance advises employees to work on the basis that the procedure will take about 14 weeks to complete if there are no particular problems; (ii) the employer must arrange to meet with the employee within 28 days to discuss the proposition. The employee is entitled to bring a fellow worker employed by the same employer as a companion to this meeting. The companion can confer with the applying employee and address the meeting but may not answer questions on behalf of the employee. The employer must ensure that the meeting is held at a time and place that is convenient to both parties. DTI guidance suggests that a mother who is about to return to work from maternity leave might find it difficult to meet at the workplace. Alternative venues should be discussed. If the companion is unable to attend the meeting on the date arranged, the employee can seek to rearrange the meeting at a mutually convenient time within seven days of the date of the initially proposed meeting; (iii) within 14 days of the meeting, the employer must write to the employee either to agree a new work pattern and confirm a start date, or provide clear business grounds as to why the application cannot be accepted and the reason why the ground(s) applies in the circumstances; (iv) the employee then has a right to appeal within 14 days of such notification. The appeal must give grounds; (v) the appeal, at which the employee may again bring a companion fellow worker, is to be heard within a further 14 days; (vi) the notice of the appeal decision is to be given in writing within 14 days of the appeal hearing. The Regulations allow the parties to agree to extend these time limits. This is to cover circumstances where it is difficult for one party to follow a certain part of the procedure. For example, during the meeting an alternative working pattern might be identified but further information may be needed to ensure that it is workable. It may not be possible to obtain this within the two weeks the employer has to notify the employee of its decision. The employer must make a written record of any agreement. There is an automatic extension to the time limits where an application is sent to the manager who will deal with the application and the manager is absent from work due to leave or illness. This applies to the initial 28-day period the employer has to meet with the employee to consider the request. The time period will start to run either on the day of the manager s return or 28 days after the application is made, whichever is the sooner.

8 6 THE RIGHT TO REQUEST The legislation provides that a chosen companion must be a worker employed by the same employer. DTI guidance suggests that it can be valuable to allow a companion from outside the organisation to attend, although there is no obligation for the employer to permit this. 9 Grounds for refusal Employers are under a statutory duty to consider applications seriously and to notify an employee of acceptance or rejection of the application. Rejection can be made only on one or more of the following grounds: (i) the burden of additional costs; (ii) detrimental effect on ability to meet customer demand; (iii) inability to reorganise work among existing staff; (iv) inability to recruit additional staff; (v) detrimental impact on quality; (vi) detrimental impact on performance; (vii) insufficiency of work during the periods the employee proposes to work; (viii) planned structural changes; and (ix) such other grounds as the Secretary of State may specify by regulations (none proposed to date). The scope of these reasons has been the subject of some controversy, with views being expressed both that the list is too limited and that the list is too wide. Much will turn on the application of these reasons in practice and how widely they are actually applied. On the face of it, these reasons seem to provide reasonable protection to the employer, particularly the small employer seeking to operate a business with minimal disruption, while also allowing an employee to benefit from opportunities for flexibility which may be present within that business. Again this goes to the heart of the matter that the right is to request to work flexibly, and is not an unfettered right to work flexibly. 10 How are employees with the right to request flexible work protected? Employees must not be subjected to detriment or dismissal by reason of making (or proposing to make) an application for flexible working, exercising (or proposing to exercise) the procedural rights, bringing proceedings or alleging the existence of any circumstances which would constitute a ground for bringing such proceedings (see section 47(D) and section 104(C) ERA). An employee also has a right to be accompanied by a fellow worker at the various meetings held to deal with the flexible working request under the Flexible Working (Procedural Requirements) Regulations A complaint to a tribunal may be made if the employer fails (or threatens to fail) to permit such a companion to attend or address the meeting or to confer with the employee during the meeting. There are three grounds for making a tribunal claim. The wording of the provisions is surprisingly complex and has already given rise to conflicting interpretation among commentators. The following is our interpretation of the position. Under ERA Section 80(H) a complaint can be one of three types: the employer did not deal with the application as required by the Procedure Regulations (or the Remedies Regulations); the employer did not refuse the application on one of the grounds set out in the legislation (see 80 G(1)(b)); or the decision by the employer to reject the application was based on incorrect facts. In other words, an employer can be brought to account if it did not follow the required procedure, it did not reject an application on one of the specified business grounds (for refusal see section 9 above), or, where the application was rejected on one of the specified grounds, this decision was based on incorrect facts. The Government believes that limiting the grounds for complaining in this way will mean that tribunals cannot question the commercial validity of the employer s decision and rule on the merits of the employer s decision. However, it may be that the relationship between the second and third grounds of complaint will provide an opening to question the underlying commercial basis for the reason for refusal. Much will depend on the tribunals willingness to investigate the facts upon which a refusal is based and whether these support the given reason for the refusal. There are a number of important limitations on making any of the three complaints described: (i) no complaint can be made in respect of an

9 THE RIGHT TO REQUEST 7 application which has been disposed of by agreement or withdrawn; (ii) no complaint can be made until either the employer notifies the employee of the decision to reject the application on appeal or commits a breach of one of the specified procedural obligations. The Remedies Regulations state these are: failure to hold the initial meeting or appeal, or the failure to notify a decision at the initial meeting stage or the appeal stage; (iii) a complaint must be made within three months of the relevant date or within such further period as the tribunal allows when satisfied it was not reasonably practicable for the complaint to be presented within three months. The relevant date is the date on which the employee was notified of the decision or, if notification did not take place, the relevant date is when the breach concerned was committed. 11 Remedies The successful employee may gain a combination of three remedies: (i) a declaration that the complaint was wellfounded; (ii) an order for re-consideration of the application; or (iii) an award of compensation to be paid by the employer. Tribunals will be able to order such compensation as is considered just and equitable in all the circumstances. However, this is capped at a maximum of eight weeks pay. A week s pay is to be calculated on the same basis as the unfair dismissal basic award (i.e. currently capped at 260 per week). The maximum award will therefore be 2,080. There is no power to order an employer to implement a flexible working arrangement. 12 Relationship with discrimination legislation Although the compensation available under the new right is very limited, the limit may not assist if other remedies are open to the employee. Some legal protection is already available to employees seeking to work flexibly. Those seeking to work flexibly as a result of childcare commitments have sought, and found, protection under the sex discrimination legislation. While this survey does not intend to provide an exhaustive summary of the existing rights under the Sex Discrimination Act 1975 ( SDA ), the following points are significant and will have direct relevance when considering whether or not to grant a flexible working request: there is no service requirement in order to bring a claim under the SDA. An employee who submits a flexible working request but has less than 26 weeks continuous service could claim under the SDA although he/she does not qualify for protection under the new right; there is no cap on compensation awards for a claim under the SDA. It is important to remember that an employee could claim the relatively modest compensation available under the new right and uncapped compensation on the grounds that he/she had been discriminated against on the grounds of sex. Subject to being able to demonstrate loss and the employee s duty to mitigate, an employee could be awarded substantial damages, including damages for injury to feelings; the test that an employer has to satisfy under the SDA to objectively justify action that would otherwise be indirectly discriminatory is generally more difficult to satisfy as it is an objective test. Under the new right an employer will be able to refuse the request, provided it considers that one of the broad statutory reasons applies and it provides sufficient explanation for this view and it is based on correct facts. For a claim of indirect discrimination the basic test in employment cases under s1 of the SDA is: an employer discriminates against a woman if he applies to her a provision, criterion or practice which he applies equally to a man, but (i) which is such that it would be to the detriment of a considerably larger proportion of women than men, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment. An employer s ability to objectively justify its decision in cases where a request for flexible working is rejected will be a particularly significant issue. It would be possible for an employer to refuse a request for flexible working on one of the business

10 8 THE RIGHT TO REQUEST grounds, but for this same reason not to constitute an objective justification under the SDA legislation. This is because the reason given is the subjective view of this employer and may itself be tainted by a sex bias. For example, a requirement that all fund managers (male and female) work full time because clients expect their fund manager to be available during business hours may be difficult to objectively justify under the SDA, but it may be an acceptable business reason under the flexible working legislation to reject a request. The employer might be able to rely on grounds (i), (ii), (iii), (iv) and (vi) - in section 9 - in this example to reject a request for flexible working. Much will depend on the approach which tribunals choose to adopt and how closely they endeavour to align the two tests. In the case of Georgiou v Colman Coyle (EAT535/00) the Employment Appeals Tribunal considered the question of objective justification when a solicitor was denied a request to work partly from home, due to childcare needs, and claimed sex discrimination. The EAT held that the employer s decision to refuse the request was objectively justified. The circumstances were very particular in that it was a small office where client service required that a lawyer in Ms Georgiou s area of specialisation should be available to meet clients; and the efficiency of her work would be adversely affected by the need to transport large amounts of documentation which could not be faxed or e- mailed. In this case there was no indirect sex discrimination. These grounds which succeeded when arguing objective justification would also fall squarely within the permitted business reasons for refusal under the new right to request flexible working. This may show the beginnings of an alignment between the concepts of the statutory reason for refusal and objective justification under the SDA. However, only time will tell whether the tribunals continue to harmonize the two concepts. Where issues of childcare are concerned, men are likely to find it very difficult to succeed in a claim of indirect sex discrimination. In almost all workforces any policy which conflicts with childcare arrangements will be to the detriment of a considerably larger proportion of women rather than men and an indirect sex discrimination claim by a man in this situation would therefore fail. For men, the more likely claim would be a direct discrimination claim because the employer has granted a flexible working request to a woman but refused a similar application from a man. Direct discrimination cannot be objectively justified. If an employee can demonstrate that a woman s request for flexible working in the same circumstances would have been granted, then he would succeed in his claim. 13 Conclusion The new right to request flexible working provides a formal method for an employee to make a request for flexible working patterns and an employer to seriously consider that request. The process is complicated and prescriptive and does require both parties to follow a detailed procedure. The financial penalties against an employer for failing to meet its obligations are, however, very limited. An employee whose request to work flexibly is rejected may still choose to take action against the employer under the Sex Discrimination Act as well as, or instead of, under the new right to request legislation. The aggrieved employee would be able to obtain a higher level of damages under the SDA. The chances of success may also be higher as an employer can defend a claim under the new right to request legislation by showing that he has followed the procedure and has a qualifying reason to reject the employee s application. Defending a claim of sex discrimination is likely to be harder because the employer would need to show that rejection of the application was objectively justified. Linklaters February 2003

11 GUIDANCE FOR EMPLOYERS THE RIGHT TO REQUEST 9 Introduction As ever, the introduction of new workplace legislation has produced a wide range of responses from employers. They run from those who groan, Not more red tape! and fear that this will open the floodgates to chaotic work schedules, to those who feel that restricting the legal right to request flexible options to the parents of young children is a retrogressive step from their own, broader policies. PARENTS AT WORK, and its consultancy BALANCE AT WORK, take the view that flexible working produces tangible business benefits, for employers as well as employees. We welcome this legislation, although we believe maximum benefits accrue to organisations when flexibility is available to all employees who can make the business case for changed working arrangements. Our experience with employers of all sizes and sectors leads us to believe that with a positive attitude, all organisations can benefit from incorporating the practices and process required by the Right to Request legislation into their systems. The red tape involved need not be complex; issues of recruitment, retention, stress, sickness and productivity can be addressed; and for those not already working in this way, the profits of flexible working for all should become apparent. The issue that flexible working and the new legislation addresses is work-life balance. Research, experience, government and many organisations can prove that addressing work-life balance issues through flexible working is sound business sense and good management practice. The primary aim of a work-life initiative is to support business objectives and increase efficiency and productivity, but produces win-win outcomes for employees and the organisation, in supporting each individual to balance their work and home commitments. Business benefits of flexible working Social and economic forces make this a key time in extending best practice work and people management skills. Any organisation s people are a valuable and expensive resource. Consequently, successfully managed, flexible working arrangements can result in enormous benefits to the business, managers and staff alike. They include: Cost savings and higher returns There is a reduction in overheads and running costs through more efficient use of facilities. A motivated workforce achieves a demonstrably higher level of productivity, which is then reflected in the organisation s success. Improved service delivery Extended business hours can be covered with flexible work schedules. The ability to tailor the working day to fit in with personal commitments releases extra energy to be channelled into work. Reduced stress means reduced sickness absence, while personal commitments can be fulfilled in one's own, flexible, time. Recruitment and retention of quality staff Good work-life balance encourages employees to stay with the organisation and not seek work elsewhere. The increased retention of highly skilled staff cuts down the need for and the cost of taking on new employees, as well as transfer of skills and experience to competitor organisations. Flexible working offers a greater ability to attract high calibre, new staff in an increasingly competitive labour market. Organisations which show that they value their employees as whole people gain or enhance an enviable reputation as "Employers of Choice". An ever-changing composition of the labour pool over the next few decades means that older people, carers and groups with special needs will form a major part of the future labour market. Flexible working attracts such employees. Legislative compliance As well as the new Right to Request legislation, along with the Sex Discrimination Act which this booklet addresses, long-standing legislation relating to employees and their ability to balance their work and home lives include the Employment Relations Act, Working Time Regulations, Part-Time Workers Regulations, Health & Safety At Work Act, Race Relations and Disability Discrimination Acts. Creating flexible working policies and practices Organisations who have flexible working policies and practices in place manage these in a variety of ways. Some have written policies, guidelines and formally embed flexibility and work-life balance

12 10 THE RIGHT TO REQUEST CASE STUDY: HBOS plc ENSURING CONSISTENCY With a philosophy of devolving practices to business divisions, HBOS has developed Diversity Standards of Excellence to ensure consistency of application across the company. The Standards reflect market best practice and are concerned with retention, respect and representation. HBOS also monitors policies and practices across the business through annual Staff Opinion Surveys and monthly tracker questionnaires supplemented by tightly managed in-house focus groups. The annual Staff Opinion Survey includes a number of diversity-related questions aimed at identifying whether staff feel valued (a current stakeholder goal for the business) and whether they are achieving a balance between work and external aspects of their lives. Divisions communicate survey results to their staff members, and together they plan strategies for improvement in areas where a shortfall has been identified. Monthly tracker questionnaires on a range of business-related topics are sent to a random sample of employees, while focus groups have been used to concentrate on specific concerns and to generate local solutions. within HR processes, such as induction, appraisal, promotion, training and exit interviews. Others take an informal approach without written policies, but promote a flexible culture where employees know they can request changed working arrangements and each case is taken on its merits. The new legislation defines a process through which application for and assessment of requests for flexible working arrangements for the relevant employees must be undertaken. An employee can make a complaint against an employer if the employer did not deal with the application as required by the Procedure Regulations. So it will stand any organisation in good stead to introduce a formal procedure which complies with legislative requirements. Consulting with stakeholders, including staff and unions, in creating the options and the processes can prove effective. Here, then, are some suggestions for policies and guidelines for your organisation, your managers and your employees, which can be tailored to the specific circumstances of your business, but should keep you legislatively compliant. Ground rules for flexible working There are some ground rules to the successful implementation of flexible working arrangements, which need to be taken on board by senior management, line managers and all employees. The underlying principles are: It s a partnership it takes co-operation to make flexible working work for the organisation, the team and the individual. It allows more flexibility for life outside work, but there also has to be give and take to meet business or service needs. It s about results - setting goals, targets and objectives and managing by results are good management practices in any circumstances. It s about the work that gets done, not how long someone can be seen sitting in their office chair. It s about good communication anyone who is working flexibly, has to ensure that everyone who might be affected knows and agrees to changes. That means talking regularly to managers, colleagues and clients. It s about staying flexible - flexible work arrangements may be a new way to work and will need fine-tuning. Part of working in and managing a flexible team is constant willingness, from all parties, to review the situation to ensure that goals and targets are being met. And, ideally: It s something for everyone regardless of age, culture or gender, not just parents, although their needs are important and specifically catered for in the new legislation. Resentment from employees excluded from flexible working options can contribute to poor morale and relationships, lowered commitment and retention. Employees should be aware that both legislatively and in terms of good business practice, flexible working is not an automatic entitlement, apart from statutory leave such as Maternity, Paternity, Adoption and Parental Leave. Use of the various options should always be at the discretion of their manager and governed by the needs of the business (except where there is statutory legal entitlement). However, individuals should have a right to use the organisation s standard appeals procedure where they feel their request for changed working patterns has been unfairly assessed.

13 THE RIGHT TO REQUEST 11 CASE STUDY: THE CO-OPERATIVE BANK WORKING WITH THE UNION The Co-operative Bank has a partnership agreement with the union UNIFI which enables them to work together on the development of HR Policies. A year ago a project team was established, comprising line mangers and staff from business areas, local union representatives and a full time member of the staff union. The team s task was to review existing family friendly policies and extend them to accommodate broader work-life balance issues in line with legislation and staff desires. Union involvement at an early stage meant the bank benefited from the experience of local representatives who made constructive suggestions about the practicalities of implementing new policies. In particular their advice on educating and supporting line managers to ensure greater consistency of policy application was invaluable. Flexible working options Here are some popular types of flexible working arrangements which it may be possible for you to offer. You may also be able to consider other options, but remember that any flexible working arrangement must be consistent with business need. Flexible working arrangements for full-time workers can include: Compressed working week or fortnight Full-time employees who wish to work their contracted hours can do so over extended days but a shorter week or fortnight. Examples include working four long days instead of five, doing a nine day fortnight, or shortening breaks and leaving earlier. Organisational benefits include being able to extend the cover of some working days. The contracted number of hours worked and employee benefits remain unchanged. Staggered hours Staggered hours working has flexible start and finish times; it is not intended to reduce the number of working hours from normal full-time hours and does not accrue extra hours. The contracted number of hours worked and employee benefits remain unchanged. Flexible working arrangements for part-time workers can include: Part-time work and reduced hours The number of hours worked less than the normal full-time contract is determined by (i) the needs of the job, and (ii) the needs of the employee. Part-time employees can increase the flexibility of worked hours (for instance if cover is needed only at peak times). Part-time employees are entitled to the same benefits as full-time employees, pro rata to the number of hours they work. Job sharing Job sharing is according to individual contract; the job sharer has a permanent contract with pro-rata pay and benefits. The job sharers share responsibility or have joint responsibility for a full-time job description. They have an agreed time schedule and a division of responsibilities by task and time between sharers, including a handover period. An essential part of job share is to ensure effective communication between both parties, and also with the line manager. A clear statement in the contract is needed in respect of the resignation of one job-sharer. Usually, if the remaining sharer does not want the job on a fulltime basis, another partner is sought. Benefits include two people bringing two sets of experiences and skills to the job, as well as flexibility; working during busy peak times together; and covering for each other's absences. V time (Voluntary Reduced Work time) "V" time is the voluntary reduction in working hours on a temporary basis, usually ranging from 5% to 50% of normal hours. An employee's salary is reduced by the same percentage. The reduction is for a specified period of time, usually six to twelve months. Employee benefits are maintained, pro rated where necessary. The employee is contracted to return to full-time work on a given date, unless otherwise negotiated. Flexible arrangements that can apply to either full-time or part-time workers are: Flexitime This allows employees to choose, within set limits, the times they start and finish work. Flexitime can be operated around "core times" (e.g. 10am 12pm and 2 4pm) during which employees have to be at work, or without restrictions. Flexitime may also permit the carry over of excess or deficit hours beyond an accounting period (e.g. monthly), with the option

14 12 THE RIGHT TO REQUEST CASE STUDY LLOYDS TSB PROVIDING GUIDANCE FOR STAFF AND MANAGERS The Work Options Scheme at Lloyds TSB has been in place since 1999 and is well established. Under the scheme all employees may apply for flexible working arrangements, but have no guarantee their request will be approved. Employee guidance, available in paper form and on the Lloyds TSB intranet, lists six potential working options to guide staff: reduced hours; compressed hours; variable hours (i.e. a regular pattern of varying start and finish times): tele-working; term-time working; and job sharing. The list is not prescriptive, so that employees may both propose other options and mix and match the ones suggested. A job-share register is available on-line, or via the HR Call Centre where staff currently on maternity leave are considering this option for returning to work. In reviewing ways to boost the uptake of flexible working options, Lloyds TSB realised the number of job-shares was low, primarily due to the difficulties of finding a partner. The register aims to facilitate this; and the on-line version carries guidance on how to make a job share effective. Managers faced with a flexible working request can also refer to website guidance or ring the HR Call Centre to discuss specific concerns with an internal HR specialist. of taking "flexi-leave" or TOIL (time off in lieu). Devolved team responsibility for rotas fosters high productivity, team relations and efficiency. Annualised hours Annualised hours systems rely on a contract which sets out the number of hours an employee is expected to work per annum, rather than the more usual system of setting the number of hours worked over a period of a week. Hours of work can be varied from week to week and month to month in accordance with the needs of the business and the needs of the employee, following mutual agreement. The number of contracted hours is calculated for the whole working year and takes into account the length of the traditional working week and statutory and contracted holidays. No overtime is paid, as the distinction between the basic working week and overtime is removed. Overtime as such can only be calculated on the completion of the annual contracted hours. Salaries are paid in 12 equal monthly instalments The most common form of annualised hours is: Term-time working Term-time working is done on a permanent contract that continues throughout the year, including school holidays. An employee can work to either a full-time contract and take unpaid leave during school holidays, or a part-time contract, but work extra days during term-time which can be accrued and taken off during school holidays. In some roles with seasonal variation in peaks and troughs, the hours may suit the business. Home- or tele-working This is a contractual arrangement whereby the main place of work is the employee s home (fulltime) or the employee works either completely or for a percentage of time from his/her home, or somewhere other than the company base. The home or site must be deemed suitable for the pursuance of tasks, in terms of equipment, environment, communication, connections, etc. Whilst some jobs lend themselves very well to home working, many do not. Productivity measures will be the same as for office based employees Career break A career break is an extended period of unpaid absence and can be used for study leave, personal development, in conjunction with Maternity/ Paternity/Adoptive Leave or for any other reason. Many organisations state that employees must have completed one or more year s service in order to be considered for a career break. Contractual arrangements vary, although there is no legal requirement to keep the job open. Employees can be required to resign, on the guarantee that they will be strongly considered for reemployment. Application for and assessment of requests for flexible working arrangements To comply with the Right to Request legislation, you will need to have an application form for requests for flexible working. The structure of the form should lead the applicant through a series of questions which enable her/him to make the business case for his/her changed working

15 THE RIGHT TO REQUEST 13 arrangements. The following suggestions should cover all relevant areas, and are followed by guidance to the applicant in completing their request, side by side with guidance to the manager who will be assessing the request. You may want to use this as the basis for generating your own application form and a set of notes each for applicant and manager/assessor. Application for changed working arrangements The applicant should state their Name, Job Title, Department, Manager, Contact details and the Date that the application is lodged at the top of the form. The proposed new working arrangement should be outlined, perhaps as a series of tick boxes if you have specific options, such as: Job Share Part-time Working Term-time Working Flexible Work Schedule Home-working Career Break Other (please specify), and the applicant asked whether the arrangement is to be temporary or permanent. A table, such as the one below, can be useful to compare current and proposed working arrangements: DAYS HOURS HOURS ON-SITE OFF-SITE Current Requested Where? Monday Tuesday Wednesday Thursday Friday Saturday Sunday TOTAL weekly hours Making the Business Case The applicant should provide answers, in writing, to questions around the following areas, where relevant to your business: 1. How will the proposed arrangement enhance - or at least sustain - your ability to get your job done? EMPLOYEE Explain how your proposed arrangement adds value to the team/department's service. Provide evidence of how you will contribute as much, if not more, with your new arrangement - be specific. Consider broad gains such as reduced stress, decreased absenteeism and improved punctuality/commuting. At a minimum, show why the arrangement will not harm the service. A sample response for this question: "My flexible hours working week will allow me to work more hours during busy periods and not waste time in the office at less busy times". MANAGER Look for evidence that the individual views this arrangement as service-based. The response should show that the arrangement will at least not harm the service and, ideally, will enhance it. You can approve either outcome. Look for individual gains (increased access to clients, reduced payroll costs) as well as broad gains (staff retention, reduced stress etc). Be aware of any faulty assumptions on your part that might affect the review of a flexible working arrangement such as: "Meetings can only happen when everyone is in the same room together" or "I will lose control of my ability to assess the performance of staff on flexible working arrangements". 2. Describe any additional benefits to the Team/Department that might result from this flexible working arrangement: EMPLOYEE Provide examples of how your arrangement will improve your ability to support the team/department. Give specific examples, such as increased flexibility in hours of availability to clients, or higher productivity preparing documents uninterrupted at home.

16 14 THE RIGHT TO REQUEST Sample response for this question: "My part-time home working will allow me to concentrate on contact with clients during my office days, and though I can be contacted by mobile in emergencies on my home-working day, I will be able to process documents with fewer interruptions." MANAGER Assess responses to this question on the basis of demonstrated links to the team/department in terms of client service, internal process and external capabilities. Look for specific, measurable outcomes that can be used to determine the proposed business gain. Be aware of any faulty assumptions on your part regarding flexible working arrangements such as: "Organisational benefits take too long to kick in - they will not affect my bottom line" or "It will take too much time to manage". 3. What problems could the new arrangement raise with: External clients/customers Internal clients/customers (if applicable) Your team/colleagues Your manager EMPLOYEE For each category think how your new arrangement will alter working together. Identify or suggest any possible problems, including obvious ones (not in on Mondays) as well as more subtle ones (the ability of your supervisor or line manager to assess your performance). An example may be: "I won't be in the office to cover phone calls at certain times of day". MANAGER Make sure the individual has fully completed this section. Base your assessment on the thoroughness with which the individual has answered the question. Does the individual clearly understand who may be affected by the new arrangement? Has the individual clearly provided concrete and accurate examples of possible challenges that might arise? Consider consulting with key people mentioned in the individual's response to see if these problems cover ones that they might anticipate. Be aware of your own faulty assumptions about flexible working arrangements such as: "Clients want access to staff all the time" or "If someone isn't around I can't access them". 4. How could these be overcome? EMPLOYEE For each of the groups listed, provide concrete solutions for any problems listed. Ideally, provide several possible solutions for each problem. Preferably, consult your colleagues and see what solutions can be devised and work for the whole team. If appropriate, talk to your clients or customers about how they would view your new working arrangement. Show that you are prepared to be flexible in return for the flexibility offered. Suggest alternatives that will meet the needs of the team/department, as well as all the individuals involved. Sample response for this question: "On homeworking days I'll ring in to collect voice mail and return any urgent calls from home". MANAGER Look for specific, concrete and well-planned solutions. An effective response will provide alternative solutions. An effective response will also show how the solutions support the service. Be aware of your own faulty assumptions such as "Our particular service requirements make this impossible to work here". 5. As a result of this new way of working, please describe how you and your manager will assess whether your performance is meeting or exceeding expectations. Be specific. EMPLOYEE Develop or adapt clear and definite goals for effectively performing your job. Implement timescales for delivering key pieces of work. Agree with your Manager what characteristics and behaviours constitute performing well in your job. A sample response would be: "I will continue to meet all expectations for my performance appraisal. I will also use the better focus of my home-working days to prepare documentation 5% more quickly".

17 THE RIGHT TO REQUEST 15 MANAGER Look for clear and definite goals and objectives. Expect the individual to have developed a reasonable time-scale for delivering key pieces of work. Work with the individual on fine-tuning the characteristics and behaviours that constitute performing well in the job. Assess the quality of this response on its specific nature, its forward-thinking approach, its reasonableness in terms of performance and timescales and its ability to be measured. Be aware of your faulty assumptions about flexibility such as: "Flexible working only works for clerical and administrative roles". 6. What review process should you and your Manager use to constructively monitor and improve your flexible working arrangement? Specify the measurable outcomes to be used in the review process. EMPLOYEE Use the standard performance appraisal process as a starting point. Develop a measurement plan that includes timescales and specific performance standards for yourself. Think about developing a performance measure which involves the above stakeholders. Try to find a way to answer the question: "What would my Manager consider to be a successful performance arrangement?" Involve the above groups in developing your performance measures. Sample response for this question: "I will maintain the same client contact as previously, and have a quicker turnaround of paperwork. I would like to meet my manager fortnightly for the first three months so s/he can monitor my progress on this." MANAGER Look for specific goals (service-based, teambased, individual performance-based) that you and the individual can agree. Expect the individual to consult with all the key people involved to develop an effective performance plan. Hold the individual to the same standard as you apply to other staff, neither higher nor lower. Consider getting feedback from the individual on your skills in managing the new working arrangement. Be aware that a review period is not a trial period. Be aware of any faulty assumptions you may have about flexible working, such as: "Working flexibly is not for those wanting to further their careers" or "People's visibility is an important component of their performance". 7. What would be one or more early warning signs that the arrangement was not working? EMPLOYEE Think about and respond to worst case scenarios. Consider the possible negative effects of the arrangement on your team members, clients or customers and manager. At what point would these negative effects make the arrangement unworkable? Highlight the signs that would characterise failure. Sample response for this question: "I will know that my arrangement is unsuccessful if other team members have problems getting their job done because I am inaccessible". MANAGER Encourage the individual to be explicit about worst case scenarios. Discuss with the individual who might be affected by the arrangement and any possible negative effects. Have the individual think about warning signs that might signal the arrangement isn't working, and that would help any problem to be resolved. Be aware of any faulty assumptions about flexibility, such as: "This is going to involve me in too much management time". Guidelines and schedule for managers assessing requests Managers should be aware that the procedure for requesting a flexible schedule has two main features: The approach is business-based - you need to ask how the work will get done and what the impact will be on the service. As a manager you will make decisions about service needs, though an employee s personal circumstances will affect their ability to provide a good service. You will need to know whether the applicant for flexible working is the parent of a young child and any applicant may wish to discuss their reason for

18 16 THE RIGHT TO REQUEST CASE STUDY BP: WEB-BASED GUIDANCE ON FLEXIBLE WORKING When the BP Workchoices website was launched in September 2002, communications were sent to all UK employees in the form of a desk drop, , posters and local site road shows, together with flyers and promotional items. Workchoices provides a one-stop access to BP s work-life policies, procedures and programmes designed to help employees get the most out of their career/home life balance. The site was created in-house, after undertaking several case studies and running focus groups to find out the needs of employees. The idea was to provide a distinctive and easy to use site. BP offers a wide range of flexible work options. A Personal Work Designer was created in order to assist staff when making requests to work flexibly. Using a range of examples, this document enables employees to think through the detail of changing their working patterns, and what the implications are both for themselves and the business. Web-based guidance is also available for managers and supports them through the decision making process. These documents are currently being adapted accordingly to incorporate the new legislative requirements due to come into force in April BP also intend to provide management training to ensure compliance and best practice. requesting a new working arrangement with you, but their reason is not part of your decisionmaking process. The process is collaborative - staff have an opportunity to make their case for working flexibly, and you have the responsibility for considering all the business benefits of the arrangement and ensuring there is no negative impact on the service. Although the final decision rests with you, the decision-making process should be a collaborative one between you and your team member. Schedule 1. Ensure that members of your team know what flexible working options are available in your organisation and the process for requesting a change in their working arrangements. They should be aware that before submitting a formal request, they should meet with you for a preliminary discussion. 2. Give any team member planning to request a change, the Application for Changed Working Arrangements and Guidelines for Employees to read and consider before your preliminary meeting. This will encourage them to think through their plan in the context of meeting departmental and team needs, as well as their own personal requirements. At the meeting, talk about the value you see in their proposal as well as any concerns you may have about how it might affect the individual's ability to work productively and effectively. Offer positive support with filling out their Application Form. Discuss whether the proposed option is the best one for the individual and the service (e.g. part-time hours versus a flexible hours option). Let them know they can ask you for further assistance when they have completed a first draft of their Application Form. They can then submit a written application laying out their proposal or arrange a further meeting with you to discuss the proposal. Make a note of what was said in the meeting, including the date, and file. 3. The timing of the procedure laid down in the legislation starts from the date a formal, written proposal is lodged. You must schedule a meeting to discuss the proposition with the applicant to occur within 28 days of that date. (Your team members will be entitled to bring a co-worker to this meeting, who s/he can confer with, but the companion cannot answer questions on behalf of the employee.) Allow yourself adequate time to consider the implications of the request before making a response. Having read the proposal, consider carefully the following: The needs of the job: Start by doing a brief a job analysis for the post in question Check if the employee s proposed revised hours fit with the tasks outlined in the job analysis Consider how the tasks might be divided up differently Will the impact on clients be beneficial? (e.g. retention of a valued member of staff, even if it means shorter hours?)

19 THE RIGHT TO REQUEST 17 CASE STUDY: CITIGROUP ASSESSING APPLICATIONS At Citigroup managers are required to assess all applications for flexible working against the following clearly defined criteria: Citigroup Work Environment needs of the business customer requirements (internal/external) workload costs organisational issues (impact on department) Work Function performance monitoring necessary work space and/or equipment requirements Individual performance demonstrated independence, motivation and accountability demonstrated need for remote access Some of these criteria relate only to applications for individuals to tele-work and are irrelevant for other applications. Citigroup also have a fairly strong health warning around individuals who may be in controlled functions or using sophisticated IT platforms/recorded phone lines or close supervision for regulatory purposes. In these situations it may prove difficult to allow individuals to work flexibly particularly at home. Managing the arrangement: How will the new arrangement be supervised and performance measured? Do you need further help or training to assist you with staff supervision? What will be the impact on the other people you manage? The needs of the employee: Will there be changes in their terms and conditions they should be aware of? How will the new arrangement affect future appraisals or promotion? How often will the arrangement be reviewed? Impact on resources: Will the long term benefits of flexible working (such as staff retention and savings on recruitment) outweigh the short term costs of implementing change? 4. At the scheduled meeting with the applicant (and companion), give your feedback. Refusing a request Sometimes, it may be necessary to turn down or postpone a request, for valid service reasons. Remember, the Right to Request legislation only allows refusal of requests on the grounds of: the burden of additional costs detrimental effect on ability to meet customer demand inability to reorganise work among existing staff inability to recruit additional staff detrimental impact on quality detrimental impact on performance insufficiency of work during the periods the employee proposes to work planned structural changes Whatever the reasons, indicate the specific business reasons for refusing a request. Give details of any specific changes or targets to meet that would enable you to approve it, and/or a time frame within which you would consider a revised request. Although the legislation states that an employee may not lodge a second request within a year of a first request, it is your right to waive this timescale. Keep a record of the date, reason and circumstances of the refusal on file so that it can be reviewed at a later date. Ask the individual to sign a copy of your notes as an accurate record of your meeting. Whether they

20 18 THE RIGHT TO REQUEST will agree to do this or not, file your notes and provide HR with a hard copy. Approving a request If you are happy with the request, there is no reason why you should not say so at the meeting and discuss how and when the change will be progressed. You might want to agree lines of communication - especially important when working off-site; and a plan for formal evaluation of the changed working arrangement, which can be part of the performance development process. You should still keep notes of this meeting, again if possible signed by the employee, on your file and with a hard copy to HR. 5. Within 14 days of the meeting you must write to the employee to either agree to the new work pattern, or provide clear business grounds as to why the application cannot be accepted and the reason why the ground applies in the circumstances. 6. The employee then has a right to appeal within 14 days of your written notification. The appeal, to which the employee may again bring a companion, has to be heard within a further 14 days. The notice of the appeal decision must be given in writing within 14 days of the appeal hearing. Under the Right to Request legislation, a complaint can be on one of three grounds: the employer did not deal with the application as required by the Procedure Regulations (or the Remedies Regulations); the employer did not refuse the application on one of the grounds set out in the legislation (see above); or the decision by the employer to reject the application was based on incorrect facts. Starting the new arrangement Once you have agreed the new working arrangement that best suits everyone s needs, you will need to work out details like: How work will be monitored and evaluated A timetable for reviews, appraisals and staff development Length of review period if this has been agreed Terms and conditions of contracts, changes to pay, pensions etc Plans for keeping in touch and training (for example, will the post holder be required to come in for meetings in non-working time occasionally?) Back-up arrangements in case of emergency i.e. contacting them at home Making it work Make sure you advise other team members of the change in working hours and have a plan of action for dealing with any problems or issues that may arise from the change. Hold regular reviews to ensure the scheme is working well for everyone. Use team meetings or find another way to ensure flexible workers remain informed and involved members of staff. Let them know as new training and job opportunities arise. Encourage the team to devise solutions for any problems that arise.

21 APPENDIX A LINKLATERS/PARENTS AT WORK Right to Request Legislation Survey THE RIGHT TO REQUEST 19 LIST OF RESPONDENTS Organisation Staff numbers ABN AMRO 3,000 Financial Services Accenture Services Ltd 7,600 Prof Services/Mgmt Cons Addenbrooke s NHS Trust 5,500 Cambridge NHS American Express Europe 7,000 Finance AMP 6,000 Financial Services ASDA 135,000 Leeds Retail Barclays 65,000 Banking & Finance The Boots Co PLC 65,000 Nottingham Retail BBC 26,200 Broadcasting/Media BP plc 17,000 Energy/oil BT 98,000 Communications Citigroup 10,000 Financial Services The Co-operative Bank PLC 4,200 Manchester Banking DNE 250 Media GlaxoSmithKline 22,000 Brentford, Middx Pharmaceuticals HBOS 60,000 Halifax Financial Services IBM 24,000 Portsmouth T Services J P Morgan 12,000 Financial Services Kings College Hospital NHS Trust 5015 NHS Lloyds TSB 63,000 Bristol Financial Services Marks & Spencer PLC 65,000 Retail Microsoft Ltd 1,200 Reading Software development Nationwide Building Society 14,500 Swindon Financial Services Schroders Investment Mgmt Ltd 1400 Fund Management Scottish Equitable PLC 4,500 Edinburgh Financial Services Unilever UK 13,500 Walton-on-Thames Manufacturing Vodafone 10,000 Newbury, Berks. Telecoms West LB Group 1,500 Financial Services EXECUTIVE SUMMARY Forty-one organisations known to PARENTS AT WORK and Linklaters were contacted in early January 2003 and asked to complete a survey into the implications of the new legislation for their business. Twentyeight (68%) responded within the timescale. The smallest employed 250 staff, the largest 135,000 staff; in total respondents between them employed nearly three quarters of a million staff in a range of sectors. The majority of respondents (82%) had a formal and written policy allowing all employees to alter working hours or other work arrangements to facilitate work/home balance. Half also had standard procedures and application forms. In the vast majority of organisations (93%) the request for flexible arrangements was heard by line managers; who also made the decision, either alone (46%) or jointly with HR (50%). Only a small minority of businesses had any formal means of monitoring consistency; although a much greater majority provided detailed information and guidance aimed at facilitating a positive response. Arrangements for record keeping also varied, but where the change to working arrangements represented a change to terms and conditions of employment, this was formally recorded. The majority of employers (57%) offered a formal right of appeal; while the minority who did not used a range of informal strategies to remain flexible and responsive to employee requests. A majority (68%) also provided guidance for staff on putting together an application. Typically this included information on available flexible working arrangements and tips on making the business case. In a number of organisations the information was available on an intranet as well as in paper form. While the majority of employers (68%) said staff were not accompanied as part of the process, reasons varied and were usually down to the fact that employees rarely requested it, or the company culture militated against it. A few employers felt such formal representation tended to make a big issue out of something they were promoting as a simple and routine part of management. The overwhelming reason for rejecting requests was detrimental impact to the business - most frequently quantified as inability to maintain levels of customer service, lack of work available in the hours the

22 20 THE RIGHT TO REQUEST employee wanted to work and negative impact on other staff in the team or department. However, the majority of employers endeavoured to be accommodating wherever possible. In this context, three quarters said the new legislation would have no (or minimal) impact on their likelihood of granting requests. A large minority (46%) felt their current procedures and practices satisfied the new legislation. Where it did not, it was frequently a case of formalising existing informal processes. Overall, respondents felt the impact on their business of the new legislation would be minimal. On the positive side, it would probably raise employee awareness of flexible working options and make them more inclined to request these. On the negative side, the legal process was likely to be more unwieldy than current, less formal, practice; and it could be divisive since it is aimed only at one small group. SUMMARY OF RESPONSES 1 OVERVIEW Number of responses received 28 Sectors coveredbanking & Financial Services; Energy; Information & Communication Technologies; Management Consultancy; Manufacturing; Media; NHS; Pharmaceuticals; Retail; Total number of employees covered 747,365 Do you currently have a policy which allows employees to alter their working hours or other arrangements (eg place of work) to facilitate work/home balance? Yes, formal and written 23 Yes, part formal, part informal 1 Yes, informal 4 Does it apply to all staff, or only certain groups? All staff 26* Some staff 2 *Citigroup requires employees to have six months service (others have no qualifying period). At IBM there are small areas of the company where it is felt the business is not currently able to accommodate flexible working; while one other organisation limits access to those employees with dependants requiring their attention. Do you plan to change any of this in the light of the April 2003 legislation? No 6 A minority of respondents felt their policy fully met the requirements of the forthcoming legislation. In some cases such as at ABN AMRO this is because a new policy had recently been drafted in anticipation of the changes due in April. Yes 20 Under consideration 2 The majority of respondents were able to articulate planned changes. For example, Barclays told us: The policy will be formalised giving more details of types of options available. The Right to Request will be extended to all staff, not only parents of under sixes. While Unilever planned to: offer more consistency, clarity and guidelines, especially for example to shift workers where it is more difficult to agree flexible working. A small minority felt applying the new legislation could prove difficult, and were still reviewing their policies. For example, a retail financial services organisation said: We will need to consider whether to apply the legislative boundaries around notification/appeal to the current policy which is used for anyone requesting a change or whether we have two policies one for those who qualify by law and one for those that do not. We don t want to make it too complicated. 2 THE PROCEDURE Do you have a standard application form/procedure? Yes 14 Procedure, but no forms 2 No 12 Who hears the request? Line or HR 1 Line manager alone 16 Line and HR 10 HR Director/Senior HR 1

23 THE RIGHT TO REQUEST 21 The majority of organisations involve the employee s line manager in hearing the request. Only two organisations permit HR to hear a request alone. Who makes the decision? Line manager alone 13 Line with HR advice, or jointly 13 Line with HR & Compliance 1 HR Director 1 Again, the majority of organisations left the decision up to line managers, usually supported by guidance from HR. How is consistency ensured? Central monitoring by a minority of respondents Company philosophy of treating employees fairly, supported by easily accessible guidance material Some concerns about consistency Only a small minority of respondents appeared to have a formal process in place designed to guarantee consistency. For example: At Citigroup all requests must be assessed against the same set of criteria. At Addenbrooke s NHS Trust copies of all flexible request forms are sent to HR. Should the line manager wish to decline a request s/he must seek advice from local HR before doing so. The HR Director and legal department of one technology company monitor all requests. A large number of respondents relied on company philosophy and training to encourage positive attitudes to flexibility: The Lloyds TSB policy makes it clear that all requests should be agreed unless a clear business detriment can be proved. Lloyds TSB has also undertaken a substantial programme of work to sell the benefits of flexible working to the business. ASDA adopts a corporate philosophy of finding a way to say yes. At Nationwide Managers aim to create an environment of open and honest communication in which employees are encouraged to discuss their ideas. Being fair and consistent does not necessarily mean treating everyone exactly the same. However, a few respondents did express concerns about consistency. For example: BT reported: to be honest this is our grey area which is why we are tightening our procedures, while AMP group said they had no real mechanism at present and Unilever told us it was currently not possible. What records of the process are kept? Record keeping varies considerably from business to business Application forms and notes of meetings are typically held locally Contractual changes are always recorded Few organisations had a comprehensive process for keeping records. ABN AMRO is an exception - copies of all paperwork including details and outcome of any appeal are kept. As already mentioned, ABN AMRO recently introduced a new policy in preparation for the legislation. A number of organisations encourage managers to keep their own notes of the process, while formal paperwork, such as request forms or communications with an employee, were typically held in personnel files. Where the change to working arrangements represented a formal change to terms and conditions of employment, a record was always made. For example, at Citigroup the change is recorded in the HR System (PeopleSoft) while at Lloyds TSB changes in hours are recorded with the HR call centre. Do you plan to change any of this in the light of the April 2003 legislation? No 6 Yes 22 The majority of respondents felt their procedures would need to be amended in line with legal requirements. For example: BP said: We will adapt our request form to incorporate the new legislation and highlight the fact that those who are eligible under new legislation will have priority. We also propose to introduce a more formal monitoring system. Unilever will have a single national policy and application process that falls within legislative processes and procedure.

24 22 THE RIGHT TO REQUEST However, the sentiments expressed (below) by Lloyds TSB were echoed by others: Of key importance for us is that flexible working remains as easy as possible to achieve whilst also complying with the clear process which the legislation outlines. 3 THE APPEAL PROCEDURE Do you currently offer a right of appeal? Yes 16* *One respondent saying yes did not have a formal process; while a second allowed a right of appeal as part of a broader policy of access to appeals procedures in a non-unionised environment. No 4 No, but may use grievance procedure 5 No, but employee & manager asked to set date to review decision 1 No, but employee may approach HR 2 Typically, where no formal appeals procedure is available, employers endeavour to remain flexible and responsive using the range of strategies listed above. Is the appeal A review of the decision? 13* A full re-hearing? 2 Other 3 *Two organisations (Unilever and Addenbrooke s NHS Trust) offered both a review of the decision or a full-re-hearing dependant on the situation. Three organisations said they would hear an appeal through the company s formal grievance procedures. Do you plan to change any of this in the light of the April 2003 legislation? No 8 Yes 20 The majority of respondents planned to introduce a formal appeals procedure as required by the legislation, although two said they were still reviewing their proposals. 4 SUPPORT GIVEN TO THE EMPLOYEE Does the employee receive any guidance on how to put an application together? No 9 Yes 19 The majority of respondents provided guidance for employees in how to put together an application. Typically this included information on the range of flexible working arrangements available, and tips on how to make the business case for a change in hours. In a number of organisations information can be accessed through an intranet, as well as in paper form. For example: At Citigroup the application procedure is explained in full on the HR intranet, and standardised forms are provided. Guidance is given on Health & Safety issues, work-life balance etc. The employee also carries out a self-assessment of their suitability to work flexibly prior to making a request. At Nationwide computer-based training on flexible working is available to all employees. At Addenbrooke s NHS Trust there is no formal guidance, but the employee can look at a copy of the flexible working procedures and discuss the matter with the HR manger. Is the employee accompanied/represented in the process? No 17 No, unless grievance procedure has been invoked 2 Yes 9 A number of respondents categorically said no. Among the rest this was a grey area. Typically, being accompanied is not encouraged, and depends on the employee specifically asking for it to happen. For example one employer said: If someone asks to be accompanied we are unlikely to refuse, but the idea is that a request to change working patterns is not made into a big deal with all the associated formalities. While IBM, BP and Unilever were among those who would allow it if the employee so wished, most organisations said it tended to run counter to their business culture.

25 THE RIGHT TO REQUEST 23 Companies which work closely with on-site unions (such as Nationwide and the Co-operative Bank) were more likely to have a policy allowing employees to be accompanied. What is the role of the accompanying individual? In virtually all cases, the role of the accompanying individual is in line with the requirements of the forthcoming legislation i.e. to guide, advise and support the employee and to clarify the issues. BP look to the accompanying individual to ensure the employee receives a fair hearing, and that the decision is based on facts. The only exception is Unilever, who said the individual can decide whether he wants moral or legal support. Do you plan to change any of this in light of the April 2003 legislation? No 5 Yes 23 Again, changes were planned to meet the legislative requirements. For example: Barclays said they planned to give individuals more information about how to request flexible working, options which may be available, what they need to bear in mind in forming a request and what the overall process for coming to decisions will be. BP will provide more detailed procedures for employees when making appeals. 5 REASONS FOR REJECTING A REQUEST What reasons have been given for rejecting a request in the past? Requests are typically rejected because of a detrimental impact to the business In a minority of cases the pattern requested is inappropriate Almost unanimously, respondents cited business interruption, negative impact on customer service, lack of work during the period employee requests to work and impact on other staff as the main reasons for rejecting a request. In some cases, the impact on staff may be the result of other flexible working patterns already in place in a department or team (which mean that the new request cannot be accommodated). Of specific concern to the Financial Services sector was the issue of compliance with regulatory requirements mentioned by both Barclays and Citigroup. Reasons were also given around Health & Safety and meeting the requirements of the Working Time Directive. Nevertheless, the majority of respondents endeavoured to be as accommodating as possible. For example, Lloyds TSB said Flexible working applications are declined where there is a clear business detriment. When this occurs, alternative solutions (other potential working patterns) are discussed by the concerned parties. Will the new legislation make you more likely to grant a request? No 21 The majority of respondents stressed their flexible working policies and practices had been in place for some time, and were working effectively. The impact of the legislation was expected to be minimal. For example: No, we have already had our policy in place for a number of years and improve it annually. The over-riding concern is delivery of service. Legislation will not change responsibilities around this. Managers are already encouraged to say yes whenever possible. No, formalising it will make it more bureaucratic, raise expectations and perceptions from non parents that favourable treatment may be granted to parents. Yes 1 Yes, in some areas 1 Possibly/probably 5 A small minority felt the legislation would have a positive impact. For example: AMP suggested: Theoretically it will have no impact as we currently only refuse for good business reasons. However, in practice there are always some managers who are resistant to flexible working. The legislation should help to convince some sceptics that they need to give proper consideration to requests, and the new processes and support mechanisms will make it more difficult for requests to be unreasonably refused. Respondents also felt the legislation will ensure a fair process is in place; and one told us: While we believe our current process is fair, it will make line managers think more deeply about whether adjustments could be made.

26 24 THE RIGHT TO REQUEST 6 IMPACT OF THE LEGISLATION Do you believe your current procedure and practice satisfies the new legislation? Yes 9 Mostly 4 No 15 Typically, procedures and practices needed some fine tuning to satisfy the new legislation. As one respondent said Our current practices and procedures satisfy the new legislation to a degree. We do, however, recognise the need to place increased structure and documentation around the process. How do you believe the new legislation will affect your business? Minimal impact on most respondents simply enhancing existing flexible working policies and practices Likely to further increase individual awareness of flexible working Some concerns about negative impact of formal legislation Since the majority of respondents already facilitate flexible working they did not foresee any significant impact to their business. For example: Addenbrooke s NHS Trust said: We have had our formal flexible working procedures in place since January Prior to that time, we had provided flexible working options for staff for many years and this has helped recruitment and retention. The new legislation merely reinforces to our managers the importance of being able to offer flexible working options. BT is renowned for its flexible working culture. They saw the impact only in change of procedure and management time devising and complying with the procedural requirements. Nationwide s view was: We are a flexible organisation and, other than changes to the procedure, we do not anticipate a huge effect. A number of respondents felt the publicity would be a good thing in increasing awareness of flexible working possibilities among employees: Barclays suggested: people will start to be more proactive in requesting flexible working options and perhaps less likely to take no as an answer. Lloyds TSB said: We believe the legislation will increase our colleagues awareness of flexible working and we take this as a positive change. There were, however, some concerns about increased bureaucracy and the potential divisiveness of the legislation. Concerned about the negative perceptions of non-parents and that leaders will be afraid to push back on requests for fear of formal reprisals. Will make our current, well-established process more lengthy, complicated, time consuming. Could increase appeals/grievance where employees have not understood right applies to request and does not imply automatic right to flexible option.

27 THE RIGHT TO REQUEST 25 APPENDIX B Sources of further advice and information PARENTS AT WORK Tel: [email protected] Website: Berry Street, EC1V OAA. PARENTS AT WORK offers employer membership to organisations which includes monthly e-bulletins, quarterly e-newsletters and discounts on cutting edge events and legal briefings. You can also offer individual membership to employees, such as those becoming parents for the first time. PARENTS AT WORK free factsheets, available on the website, include: Childcare options, Childminders, Nannies, Au Pairs, Nurseries and Nursery Classes, Maternity Rights, Flexible Working, Working Tax Credit and Child Tax Credit, Emergency Family Leave and Parental Leave, Negotiating with your employer, Factsheet for Fathers, Childcare for children with disabilities, Benefits and Tax Credits for families with disabled children, Shiftworking, Debt. BALANCE AT WORK is the corporate consultancy and training arm of PARENTS AT WORK. It is a niche consultancy, specialising in organisational working practices which bring bottom-line benefits. Our consultants draw on real breadth and depth in terms of experience and expertise, ranging from HR and training to specialist work-life balance, organisational and personal development skills. PARENTS AT WORK legal helpline The advice line offers free, confidential advice to parents on a low income about: Working family friendly hours Benefits available to working parents Rights to parental and emergency family leave Other organisations that can assist, are: Maternity Alliance For information, advice and publications on maternity and parental employment rights and benefits. Information line: Website: Northburgh Street, EC1V OAY. Equal Opportunities Commission For advice and publications on sex discrimination and employment tribunals. Advice line: Fax: [email protected] Website: Address: Arndale House, Arndale Centre, Manchester M4 3EQ Advisory, Conciliation and Arbitration Service (ACAS) For employment law advice. National Helpline: Publications helpline: Website: Address: ACAS Head Office, Brandon House, 180 Borough High St, SE1 1LW Employment Tribunal Enquiry Line: To order booklets on employment tribunals contact or go to

28 Linklaters 2003 Legal framework written by Simon Kerr-Davis, Linklaters Guidance for employers written by Lucy McCarraher, Senior Consultant, BALANCE AT WORK Right to Request legislation survey undertaken by Anna Allan Designed by Bridget Orr, Printed by Winfield Print & Design, Published by PARENTS AT WORK 1-3 Berry Street, EC1V OAA Registered Charity No: Company No: