A botched right

The new flexible working arrangements give employers too much flexibility to wriggle out of their responsibilities, writes Stephen Levinson

The right to request flexible working arrangements came into force on 6 April to a huge fanfare of government publicity (see feature, page 20).

The law was said to be a breakthrough.

In reality, the effect of these changes is much less than the spin proclaims.

Even worse, in producing a feeble change in employment protection, the new law will also create many legal problems we could do without.

It is true that employees with at least 26 weeks' continuous service may ask to vary hours of work, the times when it is required and where it should be done.

But they always could.

A real difference would have been made if any sort of binding duty had been created to agree to those requests, but it was not.

An employer has one of eight wide-ranging and vague grounds on which to refuse.

The employer only has to think one of them applies, and the legislation does not require the opinion to be reasonable.

It also seems highly likely from the nature of the grounds that the smaller the business, the greater the ability to decline the request.

Most commentators say the real problems are in small businesses.

Employers have to base a decision to refuse on 'correct facts'.

There is no clarity about this requirement.

To refuse on the basis of incorrect facts may result in a tribunal claim for eight weeks' pay or a linked claim by a woman employee for uncapped compensation for indirect sex discrimination.

However, we do not know whether the obligation refers to an incorrect understanding of the reason the request was made or being wrong about the ground for refusing the request, or both.

This is plainly a cobbled-up compromise at the expense of the punters, and - as usual - tribunals must sort it out.

Also the 'right' is much narrower than it might have been.

It only applies to employees and is not available to other categories of worker.

This is contrary to the trend of extending protections to all workers, such as the working time laws.

Even more illogical is the fact that not all employees are eligible.

Employees who are also agency workers may also not apply.

Why are their children less worthy than those of other employees?It sounds caring that the right applies to those who look after children with a disability until the children reach 18.

No doubt it was intended to do so.

But look carefully at the definition and you will see that to be considered to have a disability, the child must be entitled to a disability living allowance.

This is a very tough test and creates a relatively narrow category of those entitled to make a request.

Again, to claim one must either have responsibility for the upkeep of the child or expect to have that responsibility.

It is unclear what happens if the expectation is unfulfilled after a request is granted.

Only one application can be made every 12 months.

Suppose you make a request and withdraw it when the expectation is unfulfilled - have you blown your chances for 12 months or not?

Another burden of the new rules is procedural.

There must be a meeting to consider the request within 28 days of it being made unless it is agreed to beforehand.

There must be a written response to the request and if it is refused the reason must be stated and a right to appeal at a further meeting stipulated.

The employer must give a written response to the appeal.

There is a statutory timetable for these meetings.

At either meeting, the employee may be accompanied by a co-worker but, illogically, not a trade union representative as in the case of any grievance.

This law is too much red tape for too little result.

Stephen Levinson is a partner and head of employment at the London office of Maclay Murray & Spens