Public and Commercial Services Union

Staff have been legally able to request flexible working as carers and to look after children aged up to 6 (and disabled children up to the age of 18). This was extended in April 2009 to age 16 under the flexible working (eligibility, complaints and remedies) (amendment) regulations 2009.

Home Office response

The home office response to this Government family friendly initiative was to bury it. It missed the start date and withdrew the relevant Home Office Notice.

Subsequent PCS representations forced them to provide a link to DirectGov advice to the public since there were no Home Office procedures. Now general guidance has been provided on Horizon but this does not cover all the legal requirements.

The shortfall

Home Office ‘guidance’ is contrary even to government advice to the public, as it doesn’t cover the procedures for formal requests for flexible working. Instead, it encourages staff to ask their line managers informally.

This means that managers can also refuse informally and unfairly and there is no means of legally appealing this. So legal rights are by-passed.

A formal request under the law means that they have to apply set criteria and you are protected by a formal appeal route. An informal application could not be dealt with at an employment tribunal.

At tribunals the Home Office insists on covering all the legal points raised in the application form below but which are missing from the home office guidance!

We have asked the Home Office to outline the policy to reflect the legal situation but there’s no sign of any movement. Members who wish to apply for flexible working should contact a PCS rep first before proceeding as we will assist in checking on what criteria will be used and who will consider the request and appeal arrangements etc.

That is the reason for this MB – the Home Office may not be concerned about clarifying staff rights but PCS is. That’s why we produce similar guides to PDR, PSR etc.

What is flexible working?

There are a number of alternative working patterns:

• part-time working
• compressed hours working
• home working
• job sharing
• job splitting
• part-year working

Flexible working hours (or flexi-time) may also be available in some parts of the office where the work allows.

PCS guide

Making an application

You must confirm that you either:

• have responsibility for the upbringing of the child as parent or adopter 
• care for, or expect to be caring for, a spouse, partner, relative or someone unrelated who lives at the same address as you

The application must:

• be made in advance
• be in writing (whether on paper or electronically)
• be dated
• state that the application is made under the statutory right to request a flexible working pattern
• give details of the flexible working pattern you are applying for, including the date you wish to start
• explain what effect you believe the new working pattern would have on your employer, and how any effects might be dealt with. You should aim to show that your plans would not harm the business and may in fact enhance it (eg that you are available to provide extra cover at peak hours, so improving customer service etc).
• state whether you have made a previous application and, if so, when

You don’t have to:

• provide evidence that you have a parental or caring responsibility
• demonstrate why the care cannot be provided by someone else

Decision on the request

Your manager should take the decision on whether or not your request can be granted on business grounds rather than your personal circumstances.

They should also tell you what the criteria used are (these are limited to burden of additional costs, detrimental effect on ability to meet business demands, inability to re-organise work among existing staff, detrimental effect on performance, insufficiency of work during period the employee proposes to work, planned structural changes).

However you can of course contest any of these and/or the manner the manager dealt with the application in an appeal.

You are only allowed one application a year regardless of whether a previous application was made for separate caring responsibilities.

Any changes to your working pattern will normally be permanent, unless you agree otherwise.

Making a permanent change to your contract of employment is a big step, and should not be entered into lightly. If you have concerns about this you might suggest that a trial period of working flexibly might be appropriate.