Employment Seminar

The Employment Department held an Employment Law Seminar in October which provided a summary of Employment Law relating to family friendly provisions.

Below is a brief synopsis of the seminar material. If you would like further information, please contact Bethan Southcombe on 0117 945 3084 or e-mail employment@metcalfes.co.uk

FAMILY FRIENDLY PROVISIONS

SECTION ONE

MATERNITY PAY AND BENEFITS

TERMS AND CONDITIONS DURING MATERNITY LEAVE

Benefits during OML

Statutory right to benefit from the terms and conditions which would have applied to her had she been at work, except for the terms providing for her remuneration (that is, wages or salary).

All contractual benefits (such as annual leave, pensions, health club membership, private use of a company car and so on) will continue.

If the employee is only allowed to use the car (or other perk) for business use then it is not a benefit and so there is no obligation to continue to provide it.

If the employee receives a cash allowance rather than a benefit, it will be a question of fact whether that allowance is part of their remuneration.

Terms and conditions of employment in this context include any non-contractual benefits that are "connected with" employment.

Benefits during AML

EWC before 5th October 2008

During AML, an employee is entitled to the benefit of a much more limited range of terms and conditions than under OML:

The implied obligation for the employer to preserve mutual trust and confidence.
Disciplinary and grievance procedures.
Any terms of employment relating to notice of termination by the employer.
Any terms relating to contractual redundancy.

There is nothing, however, to prevent the employer from agreeing to provide any other benefits during AML.

EWC from 5th October 2008

Women whose babies are due on or after 5 October 2008 will be entitled to the same terms during AML as during OML

Enforcement

A woman who is deprived of any contractual or discretionary benefits due to being on OML, or who is deprived of the rights to which she is entitled during AML, may have one or more of the following claims:

A claim for deduction from wages.
A claim that she has been subjected to a detriment for a reason connected with pregnancy, giving birth, maternity suspension or taking OML or AML.
A claim for breach of contract.
A claim for automatically unfair dismissal, if there is a serious breach of contract and she treats herself as constructively dismissed.
A claim under the SDA.

Discrimination

An employer discriminates against an employee if it treats her less favourably than it would otherwise have done on the ground that she has exercised or sought to exercise her statutory rights to maternity leave, or on the ground that it is obliged to give her compulsory maternity leave.

It is also unlawful discrimination during a "protected period" (from the start of pregnancy to the end of statutory maternity leave) to treat a woman less favourably on grounds of pregnancy.

The employee will have a claim under the SDA if, because of her absence on maternity leave, the employer deprives her of any of the benefits to which she would otherwise be entitled during OML. Claims for all other terms and conditions, other than "maternity-related remuneration" are specifically excluded.

STATUTORY MATERNITY PAY

Who is eligible?

An employee is entitled to SMP if:

She has been continuously employed for at least 26 weeks at the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC), and is still employed during that week;
Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for National Insurance purposes;
She gives at least 28 days' notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date she intends SMP to start;
She supplies a certificate (usually a MAT B1) from a midwife or doctor, stating the date of her EWC. This must be given to the employer no more than three weeks after the birth or, if she has good cause for delay, as soon as reasonably practicable;
She is still pregnant 11 weeks before the start of the EWC or has already given birth; and
She has stopped work.

Employee

"Employee" for these purposes is wider than the standard definition in ERA 1996 and includes office-holders (such as a company director) whose earnings are taxed in the same way as employees and Crown servants. It also includes those non-employees who are "employed earners" for National Insurance purposes, such as agency workers other than models and homeworkers.

Continuous employment

A week (Sunday to Saturday) counts as a week of continuous employment for SMP purposes if, at any point during that week, there is a contract of employment in existence. If no contract subsists, continuity may be preserved if:

The employee is incapable of work due to sickness or injury (for no more than 26 consecutive weeks).
The employee is absent due to a temporary cessation of work.
The employee is regarded, by arrangement or custom, as continuing in employment.
The employee is absent due to pregnancy or childbirth.
The employee is absent on paternity, adoption or parental leave.

The employee must have returned to work after the absence in order for continuity to be preserved. Note that, in most such cases, an employee's contract will still subsist during the absence, in which case continuity would not be an issue.

Normal weekly earnings

Both entitlement to SMP and the rate payable, depend on the employee's normal weekly earnings. Normal weekly earnings are calculated as a weekly average of the employee's total gross earnings from the employer and any associated employers during a reference period (the "relevant period").

As a rule of thumb, the earnings taken into account for monthly-paid employees are those set out on the last two pay slips before the end of the Qualifying Week. For weekly-paid employees, the last eight pay slips are taken into account.

The relevant period

The relevant period ends with the last normal pay day on or before the end of the Qualifying Week and begins after the last normal pay day at least eight weeks earlier.

In other words, to find the relevant period:

Take the last normal pay day on or before the end of the Qualifying Week. (If the employee has already given birth by then, take the last normal pay day before the week of birth.) That normal pay day is the last day of the relevant period.
Count back eight weeks from that day.
Take the last normal pay day before that date. The day after that pay day is the first day of the relevant period.

Note that, if no "normal pay day" is identifiable from the employee's contract or from the employer's normal practice, actual payment days are used.

What are earnings?

"Earnings" are calculated gross and include anything that is treated as earnings for national insurance purposes - that is, any remuneration or profit derived from employment. This will include any bonus, commission and overtime payments, whether contractual or not. A woman's SMP entitlement can be significantly increased if an annual bonus is paid during the relevant period for assessing normal weekly earnings.

It will also include:

Statutory sick pay, maternity pay, paternity pay and adoption pay.
Arrears of pay following a tribunal's reinstatement order.
Any amount payable following a claim for interim relief where the tribunal has ordered the contract to continue.
Any amount payable under a protective award.

Certain payments are excluded from the calculation. They fall into a number of broad categories, including:

Payments in kind, such as accommodation and services.
Certain non-cash vouchers including luncheon vouchers and childcare vouchers.
Pension contributions.
Payments under share incentive schemes.

Calculating weekly earnings

The precise method of calculation varies depending on whether the employee is paid weekly, monthly or at other (possibly irregular) intervals.

If the employee is monthly paid:

The reference period should be two months and the earnings should be the last two pay slips on or before the end of the Qualifying Week.
Divide the total earnings by the number of months.
Multiply that figure by 12 to get a year's pay.
Divide by 52 to arrive at normal weekly earnings.

If the employee is weekly paid:

The reference period should be eight weeks and the earnings should be the last eight pay slips on or before the end of the Qualifying Week.
Divide the total earnings by the number of weeks to arrive at normal weekly earnings.

If the employee is paid at other intervals:

Count the number of days covered by the reference period.
Divide the total earnings by the number of days.
Multiply by seven to arrive at normal weekly earnings.

If the employee is eligible for a pay rise between the start of the relevant period and the end of her statutory maternity leave, SMP must be recalculated as if the pay rise had taken place at the beginning of the relevant period.

Start and end of SMP

For workers whose EWC fell before 1 April 2007, SMP accrues from the first Sunday after the start of OML and thereafter at the end of each complete week of absence, measured from Sunday to Saturday. This has been changed for employees whose EWC starts on or after 1 April 2007, for whom SMP accrues from the day on which leave commences.

Statutory maternity pay (SMP) is payable for up to 26 weeks if the EWC starts before 1 April 2007 or 39 weeks if the EWC starts on or after that date.

SMP will also cease to be payable altogether if:

The employee is detained in custody or sent to prison
The employee dies
The employee starts a new job after the child is born

Payment of SMP

SMP is payable at two different rates:

First six weeks: the "earnings-related rate" (90% of the employee's "normal weekly earnings").
Remaining 33 weeks (or 20 weeks if the EWC was before 1 April 2007): the "prescribed rate" or the earnings-related rate, whichever is lower.

The prescribed rate is set by the Government for each tax year.

Enhanced contractual schemes

Work during maternity leave

The general rule is that any work done during the SMP period extinguishes SMP liability for the week in which the work is done.

KIT days are the exception to this rule.

Keeping in touch days

A woman whose EWC started on or after 1 April 2007 may work during her maternity leave for up to ten days (referred to as "keeping in touch days" or "KIT days") without losing her entitlement to SMP.

Payment for KIT days is not specified in the legislation and is a matter for agreement between the employer and the employee. It is to be expected that employees will generally receive their normal contractual rate of pay.

Holiday accrual

Most contracts provide for the accrual of annual leave (often in excess of the statutory entitlement under the Working Time Regulations 1998 (WTR)). Since all contractual terms subsist during OML, annual leave will continue to accrue.

For women whose EWCs start before 5 October 2008, contractual terms relating to annual leave do not apply during AML, unless the contract provides otherwise.

For women whose EWCs start on or after 5 October 2008 the position is set to change.

SECTION TWO

PATERNITY LEAVE AND PAY

Since 6 April 2003, employees, subject to qualifying conditions, have been entitled to:

Either one whole week or two consecutive weeks' paternity leave.
Statutory paternity pay (SPP) for up to two weeks.

Both should be taken within the period of 56 days beginning with the date of childbirth or the date of placement of an adopted child.

Consultation has also taken place on a new right to additional paternity leave and pay (APL&P). The new right to APL&P was originally intended to apply to babies due in or after April 2009. However, the HMRC has confirmed that it "will now start planning implementation for babies due on or after April 2010".

Eligibility

Paternity leave is available to both male and female employees who satisfy the eligibility criteria, namely that they are, amongst other requirements, the parent of the child or the partner (including civil partner) of the child's mother or adopter.

The spouse, the civil partner or the partner of the child's mother (or adopter, as the case may be), will be entitled to take paternity leave if they satisfy the appropriate eligibility criteria.

A "partner" is defined as "a person (whether of a different sex or the same sex) who lives with the mother or adopter and the child in an enduring family relationship, but is not a relative of the mother or adopter of a kind, as specified below.

A "relative" is defined as a "parent, grandparent, sister, brother, aunt or uncle".

Birth: Eligibility criteria for employees

In order to be eligible for paternity leave following the birth of a child, an employee must satisfy three basic criteria, namely:

Be continuously employed by their employer for a period of not less than 26 weeks ending with the week immediately prior to the 14th week before the child's EWC.
Be the father of the child, or be married to (or the civil partner of) or otherwise the partner of the child's mother, if they are not the child's biological father.
Have, or expect to have, responsibility for the upbringing of the child, if the employee is the child's biological father. Alternatively, have, or expect to have, main responsibility (other than the child's mother) for the child's upbringing if they are married to (or the civil partner of) or otherwise the partner of the child's mother.

Paternity leave must be used for the purpose of caring for the child, or supporting the mother of the child in her caring for the child.

Adoption: Eligibility criteria for employees

Eligibility for paternity leave for employees adopting child, requires that employees must:

Have been continuously employed by their employer for a period of not less than 26 weeks ending with the week in which the child's adopter is notified of having been matched with an adoptive child
Be married to (or the civil partner of) or otherwise the partner of the child's adopter
Have, or expect to have, the main responsibility (other than that of the adopter) for the upbringing of the child

The employee must only take paternity leave for the purposes of caring for the child, or supporting the adopter.

Length of leave

An employee is entitled to take a period of either one week or two continuous weeks' statutory paternity leave.

Timing and notice requirements

Timing of the leave: birth

The one or two-week period of leave must be taken between the date on which the child is born and 56 days after the date of birth of the child.

If the child is born prior to its EWC, the 56-day period will commence on the actual date of birth (as opposed to the expected date).

It is for the employee to choose when to start their period of paternity leave.

Timing of the leave: adoption

An employee who wishes to take paternity leave following an adoption must do so in the period of time beginning with the date when the child is placed with the adopter and ending 56 days later. The employee is entitled to choose when they take their period of paternity leave.

Notice and evidential requirements: birth

In order to ensure that the employer is given sufficient notice of the employee's dates of paternity leave, the employee must provide in writing details of their intention to take paternity leave, together with information confirming:

The EWC.
The length of the period of paternity leave that the employee intends to take (that is, either one week or two consecutive weeks).
The date on which the employee wishes to commence their paternity leave.

This information must be provided by the employee to the employer not later than the 15th week prior to the EWC.

Employee can only change the specified date in certain circumstances.

Once the child is actually born, the employee is required to provide a further written notice to their employer confirming the actual date of the child's birth.

Notice and evidential requirements: adoption

An employee wishing to take paternity leave when a child is being adopted must provide in writing to their employer details of their intention to take paternity leave, together with information confirming:

The date when the adopter was notified of having been matched with the specific child, together with the date when the child is expected to be placed with the adopter.
The length of the period of paternity leave that the employee intends to take (that is, either one week or two consecutive weeks).
The date on which the employee wishes to commence their paternity leave.

This information must be provided no more than 7 days after the date on which the adopter is notified of their match with the child.

Employees are entitled to benefit from their usual contractual terms during their period of paternity leave except for those terms and conditions relating to remuneration. Terms governing "remuneration" are defined as "only sums payable to an employee by way of wages or salary".

An employee who has exercised their right to take statutory paternity leave also has the right to return to the same job as that which they were employed to do immediately prior to taking paternity leave.

Employees are protected from detrimental treatment on the basis of their rights under the Leave Regulations. An employee's dismissal will be unfair if the dismissal is for a reason connected with the employee's statutory paternity (or adoption) leave rights.

In respect of leave for family and domestic reasons, an employee has the right not to be subjected to any detriment by any act or deliberate failure to act by their employer for a prescribed.

An employee claiming unfair dismissal for these purposes does not need to have acquired one year's continuous service.

Remedies

An employee that considers that they have suffered detrimental treatment can make a claim in an employment tribunal. The remedies for such a claim are:

A declaration that the claim is well founded.
An award of compensation.

The provisions of the Leave Regulations are statutory minimum standards. It is open to an employer to provide enhanced paternity leave and pay in the form of contractual rights (in individual employees' contracts of employment) or by way of a non-contractual paternity leave policy.

Additional statutory paternity leave

The right

The proposed entitlement to APL&P is at present set out in Government consultation papers. There is not set date as yet for its introduction. The details of the proposed right set out below will therefore be subject to change when the final regulations are published.

To be entitled to ALP&P, an employee must:

Have been continuously employed for 26 weeks ending with the 15th week before the EWC.
Be either:

the father of the child; or
married to, the civil partner of, or partner of the child's mother but not the child's father.

Have, or expect to have:

responsibility for the upbringing of the child (if the employee is the child's father); or
the main responsibility (apart from any responsibility of the mother) for the upbringing of the child (if the employee is the mother's husband, civil partner or partner but not the child's father).

In the case of adoption, the employee must:

Have been continuously employed for 26 weeks ending with the week in which the adopter is notified of the match.
Be married to, the civil partner or partner of the child's adopter.
Have, or expect to have the main responsibility (apart from the responsibility of the adopter) for the upbringing of the child.

Mother or adopter's return to work

It is a fundamental principle of the scheme that a mother or adopter must return to work for a father or partner to be able to take APL&P. It is intended that a mother or adopter will be deemed to have "returned to work" for the purposes of APL&P if she has ended her statutory maternity or adoption leave and has stopped receiving SMP or SAP.

It is intended that an employee will be permitted to take a maximum of 26 weeks' APL to care for a child, some of which could be paid if the mother or adopter of the child is entitled to statutory maternity pay (SMP) or maternity allowance (MA). The leave would need to be taken before the child's first birthday.

The earliest a father or partner will be able to take APL&P is:

20 weeks from the date of birth of the child; or
In the case of adoption, 20 weeks from the date of placement for adoption.

Gaps between the end of statutory maternity leave or adoption leave and the beginning of APL&P will be permitted.

The preferred approach is for eligibility for APL&P to be established via self-certification by the father or partner and mother or adopter, who would both certify key facts to the father or partner's employer. This is intended to place responsibility for providing the necessary information within the set timescales on the employees. However, the Government has acknowledged that a risk of fraud exists and has considered an alternative approach which involves confirmation of entitlement from the mother's employer.

Statutory paternity pay (SPP) applies in respect of children born on or after 6 April 2003 or children whose EWC begins on or after that date. It also applies to adoption, in respect of children matched for adoption with a person who is notified of the match on or after 6 April 2003 or placed for adoption on or after that date.

The current weekly rate of SPP, which applies both on birth and adoption, is the lesser of:

£112.75 (the prescribed rate set by the Government each tax year).
90% of the employee's normal weekly earnings.

SECTION THREE

PARENTAL LEAVE

In summary, all eligible employees may:

Take a total of up to 13 weeks' parental leave for each child for the purpose of caring for that child (increased to 18 weeks in the case of a child entitled to a disability living allowance);
Take parental leave at any time:

Before the child's 5th birthday;
Before the child's 18th birthday in the case of a child entitled to a disability living allowance; or
Before the 5th anniversary of the date of placement in the case of an adopted child.

Benefit from certain contractual rights and obligations during the period of absence whilst on parental leave (similar to those which apply to an employee on additional maternity leave).
Return to the same job (or in certain cases a suitable alternative job) after the expiry of the leave.

In order to take parental leave, the employee must, at the time the leave is to be taken:

Have been continuously employed for a period of not less than one year; and
Have, or expect to have, responsibility for a child.

Members of the police service or armed forces or crew members engaged in share fishing do not have the right to take parental leave.

A person who has, or expects to have, responsibility for a child. In practice, those "responsible" for a child will normally include:

Both birth parents (whether or not they are living with the child).
Adoptive parents.
Others who have legal parental responsibility for a child, such as a guardian or the civil partner of a parent.

At present, step-parents and foster parents are not normally covered. However, that may change.

Each parent is entitled to take 13 weeks' parental leave for each child in blocks of up to four weeks leave a year.

If the child is entitled to disability living allowance, this is increased to 18 weeks' parental leave for each disabled child. The right is a personal one ? it cannot be transferred from one parent to another.

The entitlement is to take 13 weeks in total in relation to each child ? not 13 weeks with each separate employer.

The leave should be used only for the purpose of caring for a child.

Taking the leave

The period during which parental leave may be taken is limited by the MPL Regulations, but the restrictions vary depending on the particular circumstances.

The same provisions apply to an employee who takes additional maternity leave

Statutory parental leave is unpaid

Provisions relating to pay or other benefits are suspended unless the parties have contractually agreed otherwise.

Accrual of contractual holiday (over and above statutory holiday) is dependent upon the terms of the employee's contract of employment

Bonus payments - ensure no indirect sex discrimination

Postponing Leave

The employer cannot reduce the length of the employee's leave, or split up a period of leave into two or more shorter periods. Any postponed leave must be the same length as the employee's original request. Neither can the employer postpone a period of leave that has already been postponed once.

Before postponing leave, the employer must:

Consult with the employee over the date to which leave should be postponed;
Give notice of the postponement to the employee in writing (no later than seven days after the employee gave notice to take parental leave) stating:

The reason for the postponement; and
The new beginning and end dates of the period of leave which the employer will permit the employee to take. The length of the new period of leave should be the same as the employee's original request.

Returning to work

An employee enjoys the same right as someone returning from ordinary maternity leave in this context.

Remedies

There are a number of statutory offences in relation to parental leave that, if committed by an employer, would entitle the employee to bring a complaint to an employment tribunal:

Subjecting the employee to a detriment.
Dismissing the employee.
Unreasonably postponing a requested period of parental leave.
Preventing or attempting to prevent the taking of parental leave.

SECTION FOUR

PENSION RIGHTS DURING MATERNITY, PATERNITY, PARENTAL AND ADOPTION LEAVE

Employees who take maternity, paternity, parental or adoption leave are protected by statute with regard to their pension entitlement during the period they are on leave.

MATERNITY LEAVE

Paid maternity leave

A period of "paid maternity leave" may include ordinary maternity leave (OML) or additional maternity leave (AML). An employee is on "paid maternity leave" if she is receiving:

Statutory maternity pay (SMP);
Contractual maternity pay; or
A combination of both.

For pension purposes, an employee on paid maternity leave should be treated as if she is working normally and receiving her normal salary. The precise treatment of pension accrual during periods of paid maternity leave depends on the scheme's benefit structure.

Unpaid maternity leave

During OML (whether paid or not) an employee is entitled to the benefit of all terms and conditions except those relating to remuneration. "Remuneration" in this instance is defined restrictively as "only sums payable to an employee by way of wages or salary". This suggests that pensions may not be remuneration, and therefore should be maintained during OML. However, views differ on this, and there has been no definitive ruling on the issue.

Paternity and adoption leave

An employee is on "paid paternity leave" if they are receiving:

Statutory paternity pay (SPP).
Contractual paternity pay.
A combination of both.

An employee is on "paid adoption leave" if they are receiving:

Statutory adoption pay (SAP).
Contractual adoption pay.
A combination of both.

Either period can include ordinary or additional adoption leave.

During periods of paid paternity or adoption leave an employer's pension contributions to a money purchase scheme should be calculated as if the employee is working normally and receiving their normal salary.

Unpaid paternity and adoption leave

The general rule that unpaid leave is not pensionable also applies to unpaid paternity and adoption leave. Again, periods of pensionable service before and after the period of leave must nevertheless count as continuous service.

Paid parental leave

There is no statutory right to paid parental leave but employers may choose to provide employees with contractual rights to paid parental leave and if so, then the employee and the employer will pay contributions to the pension scheme by reference to the amount of pay actually received by the employee.

Unpaid parental leave

Most parental leave will be unpaid leave. No pension benefits will accrue during the period of unpaid leave but pensionable service completed before and after the period of leave must be treated as continuous service.

SECTION FIVE

FLEXIBLE WORKING

The Right to Request itself is very limited in nature. It consists of:

A right to request to work flexibly.
A statutory request procedure.
An obligation on the employer to consider that application properly.
A limited number of grounds on which the employer can refuse the request.

The Right to Request Legislation does not create a right to work flexibly or part-time.

In order to make a request an individual must:

Be employed
Have 26 weeks' continuous employment at the date the application is made
Not be an agency worker or a member of the armed forces
Not have made another application to work flexibly under the Right to Request Legislation during the preceding twelve months
Be making the request in relation to a child under six years old (or 18 years old if the child is disabled)

The child must have been born at the time that the application is made.

Be either:

The child's mother, father, adoptive parent, guardian or foster parent; or
The spouse, civil partner or partner of the child's mother, father, adopter, guardian or foster parent.

As of 1 October 2007 this list was extended to cover special guardians, private foster carers and those in whose favour a residence order is in force in respect of the child.

A partner is:

The other member of a couple consisting of:

a man and a woman who are living together as husband and wife, or
two people of the same sex who are living together as if they were civil partners.

As of 1 October 2007 the definition of adopter has included adoptions that are not through a UK adoption agency.

Some of the categories are excluded i.e. grandparents.

Have or expect to have responsibility for the child's upbringing

Be making the application in order to care for the child

Adult carers

Be or expect to be caring for a person aged eighteen or over who is in need of care and:

Married to, or the civil partner or partner of the employee; or
A relative of the employee; or
Fall into neither category but live at the same address as the employee.

Examples of care-giving activities that carers of adults who request flexible working are likely to be involved in to a greater or lesser extent include:

Help with personal care (for example, dressing, bathing, using the toilet).
Help with mobility (for example, walking, getting in and out of bed).
Nursing tasks (for example, daily blood checking; changing dressings).
Giving/supervising medicines.
Escorting to appointments (for example, General Practitioner (GP), hospital, chiropodist).
Supervision of the person being looked after.
Emotional support.
Keeping the care recipient company.
Practical household tasks (for example, preparing meals, shopping, domestic labour).
Help with financial matters or paperwork.

This is not an exhaustive list.

What kind of change can be applied for?

An eligible employee may request:

A change to the hours they work.
A change to the times when they are required to work.
To work from a different location (for example, from home).

The Right to Request procedure

Comprises the following steps:

The employee submits a written application setting out the work pattern that they are requesting and specifying their entitlement to make the application in accordance with the EA 2002. The employee is also required to specify any effect that they anticipate the proposed work pattern would have on the employer's business and how such effects might be accommodated or addressed in practice.
Within 28 days of receiving the request, the employer must arrange to meet with the employee in order to discuss the application. The employee is entitled to be accompanied by a worker employed by the same employer at the meeting.
Within 14 days after the date of the meeting, the employer must write to the employee to either agree to the new work pattern and set a start date, or to provide grounds for the rejection of the application and set out the appeal procedure.
The employee can appeal the rejection of a request, but must do so within 14 days of the appeal being rejected.
Within 14 days of receiving the appeal notice the employer must arrange a further meeting in order to discuss the grounds of appeal.
Within a further 14 days after the meeting the employer must deliver the appeal decision.

Reaching agreement and granting the request

The employee's request must provide an explanation of what effect, if any, the employee thinks the proposed change would have on the employer and how they feel any such effect might be dealt with. The BERR Guidance gives the example of an employee arguing that arriving half an hour later will have minimal impact on the business as this is the quietest time of the day and they can make up the time during the lunch period when it is far busier. BERR also acknowledge that evidence shows that applications for flexible working patterns succeed where they are soundly based on the business needs of the employer.

An employer should take the decision on whether or not a request can be granted on business grounds rather than the employee's personal circumstances.

If the procedure does result in a new work pattern being introduced, both parties must be entirely clear as to the scope of the new work pattern.

The employer should either issue a new contract setting out the terms as finally agreed or at least produce a letter setting out the terms and expressly amending the contract accordingly with effect from a stated date. The new terms or letter of variation should then be signed by the employee to acknowledge acceptance and retained by the employer.

The new work pattern will be a contractual variation to the employee's employment and will be permanent, unless a further variation is mutually agreed.

Rejecting or refusing the request

The request may be refused for several reasons, which are listed below.

Rejection of application on eligibility or procedural grounds
Refusal of request following initial meeting

The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a specific flexible working request. There are eight specific grounds for rejecting a request, these are:

The burden of additional costs.
Detrimental effect on 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 periods the employee proposes to work.
Planned structural changes.

Refusal of request on appeal
Complaints and remedies

Three months
Tribunal may order the employer to reconsider the application
May award compensation not exceeding eight weeks' pay (statutory cap)

Sex discrimination

Since the decision in London Underground v Edwards (No 2) [1998], it has been open to women whose requests for flexible working were rejected to seek redress under the Sex Discrimination Act 1975 (SDA).

Direct discrimination

Direct discrimination is less favourable treatment on the grounds of sex. Both men and women can make requests under the Flexible Working Regulations. Many employers tend to look more favourably on requests by women than those by men, a practice which could expose the employer to claims of direct sex discrimination by men.

Indirect discrimination

The current definition of indirect discrimination provides that it occurs where an employer has applied to an employee a provision, criterion or practice (PCP) which:

Applies or would apply equally to both sexes; but
Which puts one sex at a particular disadvantage to the other, and
Which puts the particular employee at that disadvantage; and
Which the employer cannot show is justified as a proportionate means of pursuing a legitimate aim.

Proposals for change

The right to request flexible working is extended to those with parental responsibility for children up to the age of 16.
The extension of the right should not be phased in, but implemented in one go.

SECTION SIX

TIME OFF FOR DEPENDANTS

Since 1999 employees have had the right to take a "reasonable" amount of time off work in order to deal with particular unexpected emergencies affecting their dependants and to make any necessary long-term arrangements.

This legislation provides that an employee is entitled to take reasonable time off where it is necessary:

To provide assistance if a dependant falls ill, gives birth, is injured or assaulted.
To make longer term care arrangements for the provision of care for a dependant who is ill or injured.
In consequence of the death of a dependant.
To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.
To deal with an unexpected incident which involves the employee's child during school (or another educational establishment's) hours.

Key aspects of the statutory right

The statutory right:

Applies to employees only. Workers and the self-employed are excluded
Applies to all employees, irrespective of their length of service, or whether they work full-time or part-time or are employed on a permanent, temporary or fixed-term basis.
Applies to both male and female employees.
Is to unpaid leave only.
Does not apply to members of the police force and certain fishermen.

Who is a dependant?

A "dependant" is defined as a spouse, civil partner, child or parent of the employee (but not grandparent) or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees). Civil partners have been included since 5 December 2005.

In addition, for the purposes of time off:

To provide assistance if a dependant falls ill, gives birth, is injured or assaulted; or
To arrange for the provision of care for a dependant who is ill or injured

The definition of "dependant" includes those who reasonably rely on the employee for such assistance or arrangements.

What is "reasonable" time off?

This aspect of the right is the one that is potentially open to the most abuse by employees.

What is a reasonable amount of time off will depend upon the individual circumstances. The nature of the incident, the closeness of the relationship between the employee and the dependant and the extent to which another person was available to assist are all relevant factors. Furthermore, an employer should always take account of the employee's individual circumstances.

Disruption or inconvenience caused to the employer's business should not be taken into account.

Employees are not always entitled to take unlimited amounts of time off work even if (each time they are away) they comply with the relevant notice requirements and only take a reasonable amount of time off.

The right to time off only applies if the employee tells their employer:

As soon as reasonably practicable, the reason for their absence; and
How long they expect to be away from work (unless it is not reasonably practicable for the employee to tell the employer of the reason for their absence until they return to work).

There is no requirement for the notice to be in writing. The employee does, however, need to give their employer sufficient information to enable it to determine that their time off is pursuant to the statutory right to time off to care for a dependant.

Employee is not required to produce any evidence of their need to take time off.

If an employer has, however, reasonable grounds to suspect that an employee has abused or is seeking to abuse the right, it should deal with the employee in accordance with its contractual or workplace disciplinary procedure.

Remedies

An employee who is refused permission to take time off in accordance with the right or who is subjected to a detriment for taking it (or seeking to take it) may complain to an employment tribunal.

An employee who is dismissed for the reason (or, if more than one, the principal reason) that they took or sought to take time off in accordance with their right will be able to claim unfair dismissal, whether or not they have completed one year's service.

Any such claim must be brought within three months beginning with the date on which the refusal, detriment or dismissal occurred.

If an employment tribunal determines that an employee has been unfairly dismissed the tribunal may order re-engagement, reinstatement or compensation. Compensation is calculated in the usual manner for claims for unfair dismissal.

Practical steps for employers

To prevent abuse of the right it is important that employers:

Put in place a clearly-worded policy setting out the precise circumstances in which an employee may take time off to care for their dependants, and any evidence which the employer may require, taking into account the guidance given in the case of Qua v John Morrison Solicitors outlined above.
Set out in the policy the notification procedures that the employee is required to follow.
Stipulate in the policy the penalties for abusing the right and for failing to follow the notification procedures.
Explicitly state in the employer's disciplinary procedure that abuse or breach of the policy will result in disciplinary proceedings being instigated.
Publicise the policy so that employees cannot claim that they were not aware of their obligations. Signpost other rights the employee may have which might be more appropriate.
Ensure that the policy is enforced consistently throughout the workforce.

Contact

Judith Ellery Head of Employment

Bethan Southcombe Solicitor

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