If a flexible working request is agreed, it operates as a permanent variation of an employee's contract. So what should you do if your employee wishes to revert to the pre-flexible working arrangement?

Anthony Thompson, Head of the Employment Department at Webster Dixon and a member of The Law Society’s Equal Opportunities committee, considers the implications.

Summary of flexible working rights

Since 6 April 2003 parents with children under 6, or disabled children under the age of 18, have the right to request a flexible working arrangement. This can take the form of requesting a change in hours, the times when they are required to work and/or the location from which the parent works. The employer is obliged to consider the request and if it is granted, it operates as a permanent variation of the parent's contract.

In order to make the request the parent will have to be:

• an employee
• have a child under 6, or under 18 in the case of a disabled child
• be either the child's mother, father, adoptive guardian or
  foster parent or married to or the partner of the child's mother, father,adoptive guardian or foster parent
• be employed by the employer continuously for at least 26 weeks at the date the application is made
• make the application no later than two weeks before the child's 6th birthday or 18th birthday in the case of a disabled child
• have or expect to have responsibility for the child's upbringing
• be making the application to enable them to care for the child
• not have made another application to work flexibly during the past 12 months.

The application must be made in writing. On receiving the application the employer is obliged to meet with the employee to discuss the details of the application (unless the application is previously agreed) and provide a written decision indicating whether it agrees with or refuses the application. If the application is refused the employer can only refuse for business reasons. The employee can appeal and the employer's decision on appeal is the final act of the process.

Case study

Let's assume that an employer has, following a request, agreed to Victoria, a secretary, reducing her hours from 35 to 20, in order that she can take her son Brooklyn, 4, to school and collect him in the afternoons. 12 months on Brooklyn is now 5 and is collected by Victoria's friend,
Mel, whose son attends the same school. Consequently, Victoria wants to increase her hours to 35 hours. Is the employer obliged to consider Victoria's request?

The employer is not obliged to consider the request. However, good employee relations require that the employer should consider Victoria's request and try to accommodate her needs. Failure to consider the request may have major implications for the employer.

As the contract variation makes Victoria a part-time worker, a refusal to allow her to increase her hours may amount to a breach of the Part Time Workers Regulations 2000, if the employer would not treat a similar request from a comparable full-time worker in the same way. From a practical point of view it is unlikely that a person already
contracted to work, 35 to 40 hours a week will ask to do more hours so that a true comparator may not be available. However, if she wanted to change shifts or location, comparative evidence will be more readily available. Even if there has been comparably differential treatment the employer may be able to justify the decision on objective grounds such as the fact that there has been a reorganisation to allow objective variation or insufficient work available.

The response to Victoria's request may amount to discrimination if she can show that there is a difference in treatment because of a refusal to consider the request or there may be discrimination in the terms that are offered to her. It will be incumbent upon the employer to show that its decision is unrelated to Victoria's race or sex.

The implications are serious in the case of discrimination as there is no upper limit on the compensation that an employment tribunal can award if discrimination is proven. Victoria may be able to claim that there has been indirect sex discrimination if she can establish that there is a "criterion, provision or practice" that prohibits the increase in her hours. As more women than men are part time, any decision not to increase hours could disproportionately affect more women than men. The employer would need to show that there are cogent business reasons for maintaining the status quo.

Victoria may be able to claim constructive unfair dismissal if she has 12 months' service. However, there would have to be a breach of contract before this right can be activated. A bare refusal to allow Victoria to work more hours, for example, is unlikely to amount to a breach of contract. However, whether there is a breach will depend upon the terms upon which it was agreed that her hours would be reduced. If there was a trial period with the prospect of a review, the failure to review may amount to a breach of contract. Even if the employer's refusal to consider Victoria's request amounted to a breach of contract, the employer may be to justify the dismissal for "some other substantial reason". If the employer consults the employee prior to making the decision, any dismissal is likely to be fair and probably non discriminatory.

Although the right to request flexible working creates a marriage of convenience, the employee's circumstances may well change and he or she may wish to revert to the pre-flexible working arrangement. Whilst the Flexible Working Regulations do not provide for the right of review of the working arrangement, save for the employee making a further application within 12 months, failure to consider a reversal or a variation to increase hours, etc could have serious implications for the employer.

In summary, the employer must adopt good practice and consider any requests for changes in the working arrangement. It should consult with the employee as to the employee's requirements and consider the options, including alternative employment that can be offered to the employee, as well as carry out a detailed assessment as to why the flexible working arrangement is necessary for the business.