1 Introduction
1.1 Who should read this practice note?
This practice note is designed for partners, human resources professionals and anyone involved with the management of a law firm.
1.2 What is the issue?
Certain employees with caring responsibilities have the statutory right to request a flexible working pattern. This practice note offers advice on that right and suggests forms of flexible working that practices may wish to consider.
It also covers the law in relation to indirect discrimination where it affects those with caring responsibilities.
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1.3 Status of this practice note
Practice Notes are issued by the Law Society as a professional body for the benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. Solicitors are not required to follow them.
They do not constitute legal advice and, while care has been taken to ensure that they are accurate, up-to-date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
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1.4 Terminology in this practice note
Must- A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May- A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors’ Code of Conduct 2007
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2 What is flexible working?
Flexible working covers a range of alternative working arrangements that are often more suitable for employees (and employers) than the traditional Monday to Friday, nine-to-five model.
Flexible working can allow employees to:
- change the number of hours of work
- change the times when they are required to work
- work from another location or from home.
2.1 Types of flexible working
Most law firms will be familiar with employees requesting to work fewer days per week or perhaps fewer hours in a given day but there are many more flexible ways of working which may suit your needs and those of the employee:
- Term time working can allow employees to spend school holidays with children. This can be particularly attractive for law firms who may find it easier to manage an employee being out of the office for a block of time at particular periods of the year, especially if those non-working periods coincide with quieter periods.
- Flexi-time means that employees work for a set number of hours but can adapt their hours to suit their needs. Some employers have 'core hours' during which time employees must attend work. This is helpful for firms who need to be certain when employees will be available to meet with clients or to help with completions or other deadline-based work. Other firms allow complete flexibility meaning that there are no 'core hours' and employees can begin later or leave earlier to fit around caring commitments.
- Staggered hours are a form of flexible working where employees begin and end at different times throughout the day. This can be especially helpful with support staff to ensure that lunch breaks are covered and that there is always support earlier and later in the day.
- Compressed hours allow employees to work a core number of hours (often full time hours) in fewer days, such as a nine-day fortnight or a four day week. This can work particularly well with employees who are able to predict what work they have and plan ahead.
- Home-working allows employees to spend all or part of their working week from home. Employers benefit from more dedicated work time due to less time spent on commuting or office distractions, while employees have more time in the day to attend to their caring responsibilities.
- Job sharing allows two (or more) colleagues to share one role. This can be very reassuring to clients who will know that their matters are being handled by no more than two dedicated solicitors. It relies heavily on the colleagues working well together and ensuring a smooth handover on non-working days. It can often work well with support staff, particularly if the job can be split along the respective strengths and interests of those colleagues.
These are just a few examples of forms of flexible working which are commonly in practice. You can decide with the employee what form of flexible working will be most appropriate for the employee and your firm.
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3 Your employees' statutory rights
Your employees have a statutory right to request to work flexibly, but not a right to be granted flexible working.
The statutory right to request to work flexibly is also limited to certain employees with caring responsibilities.
3.1 Your duties as an employer
You must consider carefully statutory requests to work flexibly. As more women enter the profession and the proportion of older people increases, it is likely that more employees will assume caring responsibilities on top of their paid employment.
This is likely to lead to an increased demand for flexible working. You need to know when a statutory request may be validly made and what your obligations are.
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See 3.2 Who can make a request to work flexibly for more details.
As carers will often be women with caring responsibilities, any practice restricting opportunities for part-time or flexible working may be indirectly discriminatory on grounds of gender.
If an employee has requested flexible working to care for a disabled family member, there is also a risk that you could inadvertently discriminate against that employee under the Disability Discrimination Act on grounds of 'associative disability'.
You should therefore consider any statutory request carefully. See 5.3 Discrimination and constructive dismissal for more details.
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3.2 Who can make a request to work flexibly?
To make a request to work flexibly, employees must:
- be employed. Self-employed locums, agency workers or consultants are not entitled to make a request under the statutory regime,
- have 26 weeks' continuous employment when making the application; and
- not have made another formal application to work flexibly during the previous year.
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3.3 Additional requirements for those who care for children
In addition to the requirements set out above, those who care for children must be making the application to care for a child who is:
- aged 16 or under, or
- aged 18 or under and in receipt of disability living allowance.
- The applicant must have, or be expected to have, responsibility for the child's upbringing and be either the child's:
- mother, father, adoptive parent, guardian, special guardian, foster parent or private foster carer, or
- a person who has been granted a residence order in respect of that child, or
- the spouse or civil partner or partner of those above.
In all cases the child must actually be born at the time the application is made. However, prospective parents may want to discuss their plans with you before the child is born and you are free to discuss future plans with employees even at this early stage.
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3.4 Additional requirements for those who care for adults
Those who care for adults must be, or expect to be, caring for a person aged 18 or over who is in need of care and who is either:
- spouse, civil partner or partner of the employee, or
- a relative of the employee, or
- living at the same address as the employee.
A relative is a mother, father, adopter, adoptee, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step-relatives, adoptive relationships and half-blood relatives are also included.
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3.5 What does 'care' mean?
There is no statutory guidance about what is meant by 'care' and this is particularly problematic when you are considering a request to work flexibly to 'care' for an adult.
However, you should use common sense when considering a request to work flexibly and not be overly prescriptive. 'Care' could involve help with personal care and mobility; escorting a relative to appointments; helping with housework or shopping; and emotional support.
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4 The statutory procedure
There are a number of steps to making a request to work flexibly. Firstly an employee makes a written and dated request to work flexibly. This application must:
- make clear that the request is being made under the statutory procedures
- confirm that they have or expect to have caring responsibility for a child or adult
- confirm their relationship with the person in question
- state what working pattern they would like and when they want this change to start
- state whether they have made any previous applications and when, and
- explain what effect the proposed working pattern will have on the firm and how this can be dealt with.
The employee is not required to give you evidence of this responsibility or relationship and you should not ask for this unless you have good grounds to believe that the request is not being made in good faith.
To be sure that the correct information is given to the employer, it is a good idea to ask the employee to use form FW(A): Application for flexible working (Word, 152Kb)
You are also free to ask employees to give as much information as possible about why they want to work flexibly. This will help you better understand their caring responsibilities.
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4.1 When you receive the request
You must arrange to meet with the employee within 28 days of receiving the request. The employee is entitled to be accompanied to this meeting by a work colleague or trade union representative.
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4.2 Accepting the request
If you accept the request, you must write to the employee within fourteen days of the meeting and set out the new working pattern and when that will start. You can use form FW(B): Application acceptance for flexible working (Word, 142Kb) for this.
You must also make clear that by agreeing to this change, you are permanently changing that employee's terms and conditions of employment unless you have agreed otherwise, for example if you have agreed to a trial period.
If you and the employee agree to a trial period, you must extend the 14 day post-meeting period in which you which you would have written to the employee with a decision.
A permanent change means that an employee may not revert back to their former way of working without your express agreement. For example, if an employee would like to work part-time while her children are at nursery but would like to return to full time work once her children are at school, she has no automatic right to return to her previous full time hours.
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4.3 Rejecting the request
If you reject the request, you must let the employee know within 14 days of meeting with and inform them of the right to appeal your decision. Make sure that you date your response.
You can use form FW(C): Application for flexible working rejection for this.
You must have good grounds for refusing a request to work flexibly. You must also explain to the employee why the request could not be accommodated, and it must be for one or more of the following reasons:
- Planned structural changes
- Burden of additional costs
- Detrimental impact on quality
- Inability to recruit additional staff
- Detrimental impact on performance
- Inability to reorganise work among existing staff
- Detrimental effect on ability to meet customer (or client) demand
- Insufficient work during the periods the employee proposes to work.
You must also give sufficient explanation about why these grounds apply. It is not sufficient to write a list of the above grounds in a rejection letter. You should explain what steps you have taken to try to accommodate the request and why, despite doing your best to accommodate more flexibility in the employee's working pattern, you could not grant this request.
While a Tribunal does not have the power to look behind your reasons in respect of any claim for a breach of the statutory right to request flexible working, it will examine these reasons very closely if a claim is brought under the discrimination legislation (for example for indirect discrimination on grounds of gender).
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5 If you reject the request
5.1 Your employees' right to appeal
The employee has fourteen days to appeal against the rejection of any request. The appeal should be in writing and set out the grounds for making the appeal.
You must arrange a meeting to discuss the grounds of appeal within fourteen days of receiving the appeal notice.
It is good practice for the appeal to be heard by someone in the firm who has not been involved in the decision not to grant the request. For example, the decision could be made by the Head of Department, with an appeal to the Managing Partner. In the case of support staff, the decision may be taken by a team leader with a right of appeal to a director or manager.
You must write to the employee with the appeal outcome within fourteen days of the appeal meeting. If you change your mind, you must inform the employee in writing when the new working pattern will start. If you agree with the original decision, you must give an explanation for this. You can use form FW(E): Flexible working appeal reply (Word, 141Kb) for this.
The decision of the appeal hearer is final.
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5.2 If you refuse an appeal
An employee can complain to an Employment Tribunal that there has been a breach of the statutory right to request flexible working (either because the decision was based on incorrect facts or the correct procedure has not been followed). However this is a limited remedy.
An employee cannot complain on the basis that he or she simply disagrees with the business reasons that you have given for the refusal.
The Tribunal cannot challenge your business reasons for refusing a request but can check to make sure that you based your decision on the correct facts.
A claim must be presented to the Tribunal within three months of the procedural breach or within three months of being notified of the appeal decision.
The Tribunal may order the employer to:
- reconsider the application
- pay up to 8 week's pay capped currently at £350 per week (rising to £380 from 1 October 2009).
If the employee was not allowed to be accompanied at a meeting or you failed to postpone the meeting to allow a companion to attend, an award may be made of up to a further 2 week's pay at the capped level set out above.
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5.3 Discrimination and constructive dismissal
For many, the statutory right to request flexible working is relatively ineffective. Any breach of the legislation is rewarded with minimal compensation and is unlikely to be much of a deterrent to employers who simply do not want to consider any such requests.
However, flexible working requests are often made by:
- women, who still traditionally assume most responsibility for child caring
- women returning from maternity leave, and
- those caring for elderly and/or disabled adults.
As a result, if an employer unreasonably refuses a request it could be exposed to claims of:
- indirect discrimination
- part time worker discrimination
- associative discrimination
- constructive dismissal.
For example, a flexible working request is made by a woman who has returned from maternity leave and who is juggling work and childcare. The law firm where she is employed upholds a rigid nine-to-five work day, and often the hours worked are far in excess of this. The employee's request is therefore refused.
This practice of only allowing full-time work appears to be disadvantaging one section of the workforce more than others, in this case women because it is well evidenced that they tend to have more caring responsibilities.
Employers can justify their approach if they can show that the practice is serving a legitimate aim (for example safeguarding client relationships) but only if that practice (ie. nine-to-five working only) is a proportionate means of achieving that legitimate aim.
In the example given above, it would be doubtful if a blanket rule that all staff must work nine-to-five is a proportionate means of securing client relationships.
In this example, were the employee to complain to a Tribunal of indirect sex discrimination, a Tribunal would scrutinise carefully the reasons behind not granting the flexible working request. It would check whether the employer had considered other ways around the problem of maintaining good client relationships while having a flexible workforce and whether it had considered less draconian alternatives.
5.3.1 If you are found to have discriminated against an employee
If you are found to have discriminated against an employee, the remedy can be substantial and could include:
- loss of earnings (if that employee resigns and claims that they were constructively dismissed due to a breakdown of trust and confidence), and
- injury to feelings for the hurt caused by discrimination of between £500 and £25,000.
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6. More information
6.1 Statutory regulation
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6.2 Useful contacts
ACAS (The Advisory, Conciliation and Arbitration Service)
Telephone: 08457 47 47 47
Textphone: 08456 06 16 00
ACAS website
Provides information and advice to employers and individuals on legislation and on industrial relations practices and procedures.
Department for Business, Innovation & Skills (BIS)
Ministerial Correspondence Unit
Department for Business, Innovation & Skills
1 Victoria Street
London
SW1H 0ET
Telephone: 020 7215 5000
Minicom: 020 7215 6740
Fax: 020 7215 0105
Email: enquiries@berr.gsi.gov.uk
BIS website
Working Families
1-3 Berry Street
London
EC1V 0AA
Tel: 020 7253 7243
Fax: 020 7253 6253
Freephone helpline for low income families: 0800 013 0313
Please contact the Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues: 0870 606 2577
For further information on this practice note please contact the Law Society Practice Advice Service: 0870 606 2522
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6.3 Other products
6.3.1 Law Society publications
6.3.2 Training and events
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