• The employee submits a written request specifying their preferred work pattern and specifying their entitlement under the Employment Act 2002.  The employee must also specify what effect this may have on their employer’s business (and how this could be addressed).
• The employer must meet with the employee within 28 days of the request to discuss the request.
• Within 14 days of the meeting, the employer must write to the employee either agreeing to or refusing the request and setting out the appeal procedure.
• The employee can appeal within 14 days if their request is unsuccessful and within 14 days of this, the employer must arrange a further meeting to discuss the grounds of appeal.  After a further 14 days the appeal decision should be delivered.

The statutory procedure is complex and includes numerous time limits, although the penalties for breach of the procedure are relatively limited.

Refusal of request

If there is a legitimate business reason why a request cannot be accommodated, an employer may be entitled to refuse. Grounds for refusal include the burden of additional costs; detrimental effect on ability to meet customer demand; inability to re-organise work among other staff and detrimental impact on quality/performance.

Remedies

As there is no absolute right to work flexibly, remedies are limited in scope and in potential compensation.  Employees may make a complaint to a tribunal on limited grounds; for example, if there was a procedural defect in that the employer did not hold a meeting, notify the employee of its decision or offer a right of appeal, if the reason for refusal is not one of the prescribed reasons or if the decision to refuse the request was based on incorrect facts.

In practice, claims are often made together with claims for direct or indirect sex discrimination.

It is advisable at all times for employers follow the statutory procedures, demonstrate serious consideration of the request, start from a “positive” perspective, seeking to overcome potential issues, consider alternatives, rather than only the initial request and ensure consistency in the treatment of employees.  Employers should also explain their decision and reasons in full and as clearly as possible at all stages of the procedure.

Recent changes to the law

A Bill was read in the House of Commons on 19 October 2007 which would extend the right to request flexible working to parents with children up to the age of 18. A report is expected in spring 2008 and a formal consultation will follow. The Equal Opportunities Commission has also recommended the extension of the right to request to all employees in order to improve work life balance across the board.

Davenport Lyons is a corporate and rights law firm based in London's West End. To find out more about us and how we can assist SMEs please visit our website at www.davenportlyons.com.