Work& Parents competitiveness and choice.DTI consultation on draft regulations flexible working provisions

GMBResponse

GMB welcomes the new right of parents of young anddisabled children to apply to work flexibly and the duty on employers toconsider such requests seriously. Wewelcome the opportunity to comment on these draft regulations, having commentedextensively on earlier consultation processes.We believe that this new right has the potential to deliver realimprovement to the lives of working parents.Furthermore, by providing more flexibility to working parents, weanticipate a knock-on effect as employers become more comfortable with thebenefits of giving more control to all workers over their working patterns.

This paper sets out our response to the consultationquestions, together with comments on the draft regulations. It incorporates our response to theconsultation paper on flexible working compensation.

GMB

22-24 Worple Road

London

SW19 4DD

General Secretary: John Edmonds

For further information please contact Matilda Quiney,Research Department.

Eligibility, complaints and remedies

Eligibility

We were disappointed that the new right will beavailable only to parents with children aged under six or disabled childrenaged under 18. We recommend that thisaspect of the legislation is considered by the review in 2006.

We were also disappointed that the new right islimited to employees. In addition, weare particularly concerned that agency workers are specifically excluded fromthe regulations. This appears to goagainst recent moves in employment law.Although regulation of agency workers is in draft form and subject toEuropean Directive which has not yet been agreed, the status of agency workersmay be clarified shortly in any event. The explanation given in the explanatorynotes to the Employment Rights Act 2002 shut down any possibility that theagency worker could have a good case and the employer might be open to thatcase. The regulations only cover a right to apply for flexible working, soemployers have an adequate defence already in the circumstances outlined in theexplanatory notes.

We also believe that the 12-month lock-out period istoo long. Quarterly cycles are commonfor planning and forecasting, including planning of shift cycles. Circumstances can change very quickly and inan unforeseen manner. And we would havepreferred a day one right, incorporating an entitlement to request a variationon being taken onto a job. This wouldalign with sex discrimination rights eg to request to be employed in a new jobon a job-share basis. We believe thatguidance should encourage employers to be open to requests from those who arenot eligible.

Relationship between parent and child

The term upbringing is not clear. It might be taken to imply more than isinvolved with, for example, visits agreed under custody where parents areseparated. It might also open the wayfor employers to make value judgements about whether both parents areresponsible for upbringing, or just the "main" carer.

Stephenis a carpenter. He split from hisgirlfriend when his son was two and is now moving to a new job with a newpartner 200 miles from where his ex-partner lives. He sought court agreement for his son to live with him, butwithdrew his claim when he realised that his son was upset by the process. He agreed instead to visits of a week ormore at a time, totalling at least eight weeks in a year. The visits will be agreed well in advanceand Stephen would like to take unpaid leave and/or work very much reduced hoursduring these times. Parental leave andannual leave is insufficient to cover his need. Stephen accepts that he will have little influence on how hischild is brought up compared with his ex-girlfriend. But he should not beexcluded from having the entitlement.He is also concerned that his employer might misunderstand the law andmake value judgements about his role in his childs life.

We suggest that the words for the upbringing aredeleted, and that the right is conferred on those with responsibility forcaring for the child.

There may be a drafting error in regulation 3 (b) (ii)- should "living with" be deleted, as otherwise there is a highertest on married partners than non-married partners of parents. We are also concerned that the wording ascurrently stands would exclude ex-partners who acted in a parental role fromthe entitlement which would support them in maintaining a parental presence inthe lives of the child.

We are pleased to see the emphasis that the rightapplies equally to anyone who has responsibility as a parent of a child. We would wish to see this reflected in theguidance, including examples of men (as some employers at male-dominatedworkplaces may try to argue that it is not relevant to them) and of parents insame-sex relationships.

We strongly support the inclusion of adoptive parents,although we would have liked to see provision for the right to be extended toup to six years following adoption.This should be examined by the review in 2006.

We agree that foster parents should have access to theright, although accept that as the right is a permanent change to contracts itwill be limited in their cases.

Michael a social worker - and Sandra a charity administrator - have been accepted asemergency foster parents. This meansthat they could be called upon for (usually) short term fostering at shortnotice eg if a single parent is hospitalised for few days following anemergency operation; for weekend respite care.They are able to turn down requests to foster because of workcommitments, but in order to make it more likely that they can realise theirambition to foster, Sandra wishes to work part time and Michael wishes to get ageneral agreement to work flexi-time, including building up a bank of time offin lieu which is larger than that currently allowed for under his currentflexitime agreement, to be taken at specific times on agreement with his linemanager. The right to request flexibleworking would provide both with an avenue to explore these alternatives.

In our experience, guidance can sometimes encourageemployers to stick rigidly to minimum entitlements, under the misapprehensionthat they are not allowed to go further.We would press the government to include in its guidance wording tostate that although the law only provides for a permanent change in contracts,it does not preclude a contractual agreement to a temporary period of flexibleworking. Other best practice exampleswould be helpful.

This would enable both parties to trial run the newarrangement and review it at the end of the trial. This would surely have advantages on both sides, not leastencouraging employers to be more open-minded about working arrangements withwhich they are not familiar, and providing them with a defence against indirectsex discrimination claims if the new arrangement did not work out. Guidance could also state that employers mayalso agree temporary changes to cover the period of need, or a period duringwhich the employer is confident that the arrangement can be supported, wherefactors may change after the elapse of the period.

Form of applications

We remain concerned that the requirement on theemployee to state the effect on the business and how this might be amelioratedis onerous. Would this advantage anemployee who has no time to look into the matter and states that there is noeffect on the business, as against the employee in the same circumstances whoundertakes research into the possible effects but is not sure how to deal withthem?

We are of the opinion that the application should nothave to be laid down on a statutory form to enable employers to tailor forms indiscussion with employees and their representatives eg to include details offlexible working schemes already available in the workplace, details ofoccupational entitlements to leave, details of the procedure with job titles ofappropriate people involved. But thereshould be an example of a form in the guidance.

We agree that the application should not contain aprompt for the employee to include details of why they are making theirrequest. This has the potential ofinfringing rights to privacy and could lead to unnecessary conflict.

The date of making an application

We agree that the application is taken as made onreceipt by the employer, but we think that the employer should be required toacknowledge receipt for clarity.Guidance should also encourage the employer to inform the employee ofany gaps in information in his/her request at this stage.

Breaches of the regulations by the employer

We would have preferred the statutory approach toenable the tribunal to examine properly the reasons for refusal.

The regulations do not appear to cover the employertelling someone at the meeting that they are not eligible when they are, forexample if they tell the employee that they have only 25 weeks service, whenthey have been employed for 26 weeks.This may be covered by the incorrect facts, provision of new section 80H(1) (b), but we feel that this should be explicit.

Remedies (also covering consultation paper on flexible workingcompensation)

We believe that there should not be a limit on aweeks pay. The current limit at 250is very low and enables employers to evade their responsibilities on economicgrounds. We would also like to see nolimits on actual loss, injury to feelings and interest.

The following examples are intended to provide somethoughts on where losses might occur.

Example 1

UnderManinders contract as a nurse in a care home, annual leave accrued duringmaternity leave had to be taken prior to returning to work (ie added to the endof the maternity leave period). Sherequested that on return from maternity leave, her accrued annual leave be carriedover to enable her to return to work paid full time, but working fewer days fora number of weeks. This was because thenursery to which she intended to send her son indicated that it did not have afull time vacancy until a couple of months after her return date. Her request was granted.

Had therebeen a delay to the decision because the procedure was not followed, her costsmight have included childcare costs.She could have provided evidence of the daily rate at the nursery. But the nursery place was notavailable. Alternatives included achildminder (a cheaper option, but one which may not have been available orideal care for the child on such a short term basis) or her mother who waswilling to step in for a limited period.Maninder feels that she would have wanted her mother to look after herson, but that if she had taken the case to Tribunal, compensation shouldinclude a rate linked to the nursery rate to compensate her mother for hereffort.

Analternative is that she would have returned part time for the weeks in questionand lost pay. In other circumstances it is possible to think of parents takingtime off for dependants, or a partner taking annual leave. Compensation could include reimbursement ofunpaid or paid leave, paid at the daily rate.

In analternative scenario, her request was turned down, but she did not know thisuntil she returned to work, because her employer did not send her thedecision. By this time her mother hadorganised a long trip to India, so the offer of free childcare was gone. It was too late to arrange alternative paidchildcare, and she had to take unpaid ToD leave. Or she had to pay for an(expensive) emergency short term nanny arranged through an agency as the onlyform of childcare available at such short notice.

Example 2

Debbiesemployer agreed to her request to work term time only. This enabled her to afford to send herchildren (aged four and five) to full-time nursery and school during term time,and spend more time with them at home.Previously, she had used a childminder, but had found that a substantialpart of her annual leave and her husbands annual leave was taken up coveringfor illness and annual leave of the childminder and the illness of thechildminders children. Her employer wasrelatively sympathetic to allowing her requests for time off but it meant thatshe and her husband had insufficient annual leave to plan for a familyholiday.

Had theprocedure not been followed, Debbie would have continued to use up annualleave. Had she had a firm and timely"no", she would have used time off for dependants during childcarebreakdown, so that she had sufficient annual leave to take a holiday.

Example 3

Natashaworks part time for a clothing company.She recently altered her times of work so that she worked all her hourswithin three days, rather than spread across five days. Had the procedure not been followed, shewould have continued to spend more on childcare (including to cover her extratravel time) during the period up to resolution at employment tribunal. Her travel fares would have been higher -not in itself necessarily relevant, except that her journey incorporatingtravelling to the childminder was more expensive than travelling to and fromwork. She also suffered from worsening eczema during the year running up to thechange in her hours, which she put down to the stress of travelling home intime to pick up her children five days a week, and this stress-related illnesswould have been exacerbated during the delay.

In analternative scenario, Natasha turned down an offer of work from anotheremployer while waiting for her request to be considered. When she finally realised that her employerhad no intention of considering her case, it was too late to approach the otheremployer.

Example 4

Karenworks in an office. Her daughter wasgiven a place at a local authority nursery school which was attached to awell-regarded primary school. In orderto take up the offer, she needed to begin work half an hour later each day, butcould leave later because her partner was able to pick up the child.

A delayin agreeing the new pattern of work meant that she could not confirm the place,and it was lost, along with her deposit, and she had to place her daughter in amore expensive private nursery. And itmade it less likely that her daughter would be accepted at the primary schooltwo years later. We accept that thelatter point is speculative, but it is important to many parents.

In analternative scenario, she was turned down, but because the procedure wasdelayed, she accepted the place in the hope of succeeding her request becauseit was her preferred option for her daughter.When she finally came to realise that her employer had no intention offollowing the procedure, she had to take her daughter out of the nursery afterjust a few days and arrange alternative care in the more expensivenursery. This meant giving threemonth's notice at the first nursery and paying three month's fees. The disruption also affected her daughter'sbehaviour and caused her stress.

Example 5

Brianrequested part time work to participate more fully in child-rearing when hiswife returned to work. This involvedco-ordinating his work with that of his partner. When the request was not dealt with in a timely manner, thiscaused problems for both him and his partner.Had he been given a straightforward "no", his partner wouldhave been able to make alternative arrangements. The stress of not knowing had an impact on their home life.

We believe that compensation should be sufficient foremployees to see the new regulations as a real remedy against inflexibleemployers, so that they have less incentive to pursue a sex discrimination casewhere there is no cap.

It should also be noted that there should be toughpenalties for breaching a procedure because the tribunal will not have thepower to order the employer to implement a flexible working arrangement.

We also calculate that the procedure takes aroundthree months. It could easily take a furthernine months, if not longer, before a complaint is heard at IndustrialTribunal. Where additional costs arebeing paid, for this time, we believe that 52 weeks compensation is moreappropriate.

For the above reasons, we believe that the number of weekspay should be at least 52.

Procedural requirements

The meeting

Guidance should make clear that adjournments should bealso to an appropriate time and place convenient to both parties.

Employees right to be accompanied

We believe that statute should provide for a rightconsistent with the right to be accompanied at disciplinary and grievancehearings. We believe that it is veryimportant to include a full-time official or lay official as certified by theunion. There may not be a recognisedtrade union or local representative.Colleagues in the workplace (including at times the union workplacerepresentative) may not be sympathetic to the request. They may not have the knowledge orexperience to think laterally about alternative ways of working. A full-time official/lay official will havewider experience of practices elsewhere which would benefit the process. This is particularly true in a smallworkplace. We believe that unionrepresentatives would have the common sense not to raise expectationsinappropriately and would have the experience to understand how flexibility canand should sometimes but certainly not always be tailored to theworkplace. GMB has often carriedlessons learnt from one employer to another when negotiating collectiveagreements on flexible working (eg annualised hours experience in food anddrink manufacturing used in introducing the practice into clothingmanufacturing). We believe that wecould do the same on an individual level.

In addition, employees would have less incentive to godown the grievance route if they had the same right to representation.

We do not think it necessary to lay down in law thestatutory ability to be accompanied by a non-industrial outsider such as afriend, relative or indeed expert in flexible working to the initialmeeting. We would be concerned that theemployer might then be prompted to react by arriving mob-handed with thepurpose of intimidation, and including at the meeting for example barristers,or consultants armed with complex legal or business reasons to turn down therequest. But we do see that someoutside experts can be helpful at later stages.

Where the guidance addresses the constructive and opennature of the discussion, it should note that employers can make meetings moreformal than they should be.

The employers decision

We agree that the employers decision need not be instatutory format.

The information given in the table is appropriate,depending on the level of detail, which is not clear in the consultationdocument. We suggest that the statementof the right to appeal should include the time limit.

Extensions of time limits should be agreed inwriting. The relevant regulationsshould be amended to ensure that bothsides are required to sign and date the agreement [Reg 12 (2) (d)].

Careful thought would have to be given to the guidancegiven on a range of examples indicating the appropriate level ofexplanation. We are happy with thelevel of detail given on page 36 of the Act's Explanatory notes. But if the guidance is drafted badly, thiscould cause real problems. If theintention is to indicate the level of explanation, it must be very clear thatemployers should not copy this reason down as one which will be acceptable atTribunal, regardless of if it fits the specific circumstances of thebusiness. We suggest that this is anarea where there is full consultation as this part of the guidance could havean important influence on the operation of the new right and is open topotential misuse. Examples whereemployers have agreed to requests and adaptations would be a positiveinclusion. We would be happy to commenton drafts of this section of the guidance.

We were unhappy with the use of the term"staff" at 80 G (1) (b), because many of our members take the term toapply to non-manual as opposed to manual workers. We would have preferred the term "workforce". We are happy with the Minister's explanationof why the term is used at col 626 of the Committee stage on 24 January. It would be helpful if guidance or theregulations could define "staff" and thereby explain the intention.

Appeals

The consultation document does not suggest who mighthear an appeal. The regulations shouldrequire appeals to be heard by an appropriate person who is not the same personwho held the original meeting. Theexisting ACAS code should apply and guidance should refer to the mediationservices of ACAS.

We would prefera best practice rather than a statutory appeal form so that it can beadapted.

Extension of time limits

As stated above. extensions of time limits should beagreed in writing and this should be clear in the regulations. This would not be an onerous requirement andwould protect against those with devious motives. The relevant regulations should be amended to ensure that both sides are required to sign and datethe agreement [Reg 12 (2) (d)]. Thiswould provide for clarity.

Extensions to enable further enquiries intoimplementation of particular working patterns may be acceptable as long asthese are related to the length of time to undertake the enquiry and not usedto unnecessarily delay procedures. Ifthis is the case, then it will be in the employees best interest to agree anextension. If not, then failure toagree should mean that the extension cannot happen.

We accept theextension due to illness or annual leave, but feel that this should not beautomatic and should be limited. Largeremployers are likely to have arrangements for cover for periods of illness orannual leave longer than a few days and where there is adequate cover, absenceshould not be a reason to delay. Wherethere is no cover, there should be a time limit on the extension. A request should not be put off if there islong term sickness absence for example.The extension should be limited to a maximum of 14 days before the 28days starts.

When an application may be treated as withdrawn

We believe thatapplication withdrawals should be required in writing. Oral withdrawals are open tomisinterpretation and fabrication.Written records are standard in other parts of the regulations.

Failure toattend two meetings should certainly not be taken as withdrawal where theemployee has had to take for example time off for dependants or sick leave atshort notice.

We would alsobe concerned at the unreasonable refusal to provide required information to theemployer. The employer appears to be inthe position of being able to decide what is an unreasonable refusal, yet ableto require unreasonable information which could be of a personal andinappropriate nature. Having receivedinsufficient information, the employer can always refuse the request and givethat as a reason, so does not need the double protection of being able to deemthe request withdrawn. We suggest thatregulation 16 (c) is deleted.

Publicity

Finally, webelieve that the new regulations must be widely publicised usingparent-friendly methods alongside traditional routes, eg childcare providers,healthcare providers, community and parents groups and libraries.