Flexible work regulations laid before Parliament.
Yesterday the Government laid before Parliament revised regulations setting out the procedure for exercising the right to request flexible working, due to come into force on 6th April 2003.
This follows the consultation paper and draft regulations issued in July this year and implements the right to request flexible work contained in the Employment Act 2002, summarised here.
The regulations provide that, where an application to work flexibly has been made, an employer must either hold a meeting to discuss it, or agree to the contract variation, within 28 days. If he holds a meeting, the employer must notify the employee of his decision within 14 days after the meeting. The employee has 14 days to lodge his appeal against the employer’s decision and the employer must hold a meeting to hear the appeal within a further 14 days. The employer must then notify the employee of his decision within - you guessed it - 14 days! The periods can be extended by agreement or where the individual who would normally consider the application is on sick leave or annual leave.
An employee will have a right to be accompanied to a meeting to consider a flexible work request. However, the companion must be a work colleague working for the same employer. In contrast to the existing right to be accompanied to a disciplinary or grievance hearing, employers will not be obliged to permit union officials from outside the workforce to accompany the employee. Where the chosen companion is not available on the meeting date, the employee must propose a convenient alternative within the following 7 days (previously 5 days). Protection against detriment and dismissal for the exercise of this right has also been added to the regulations.
The draft regulations are available here. Two further sets of regulations will be issued, one dealing with eligibility, complaints and remedies and the other extending the ACAS arbitration scheme to cover this right. One of the controversial issues during consultation was the level of compensation tribunals will be permitted to award where an employer breaches the procedure or rejects a request based on incorrect facts. Opinions ranged from 4 weeks' pay (employers) to 52 weeks' pay (unions). Alan Johnson stated in the House of Commons this week that he intends to set the limit at 8 weeks' pay (subject to the statutory cap, currently £250 per week). The exception is where the breach relates to the right to be accompanied, where the limit will be 2 weeks' pay.
Maternity, parental, paternity and adoption leave – regulations approved by Parliament
This month has also seen the approval by Parliament of the regulations setting out the detail of the changes to maternity leave and the new rights to paternity and adoption leave included in the Employment Act 2002, also coming into force on 6th April 2003. Consultation on prior drafts was carried out in May this year and highlighted a few outstanding policy issues which have now been resolved - see the Government's response and copies of the regulations here. Employers can now start amending their family leave policies to reflect the changes ready for April next year - please get in touch with your usual contact at Herbert Smith if you would like assistance with this.
Note that the proposal to change the notification period for parental leave from 21 days to 28 days (to bring it into line with the new notification periods for maternity, paternity and adoption leave) has been dropped. The only change affecting parental leave relates to new provisions concerning the right to return from two or more consecutive periods of statutory leave.
Equal pay questionnaire
Finally, the Government has begun consultation on the design of an Equal Pay Act questionnaire which will operate in a similar way to the existing sex, race and disability discrimination questionnaires, but subject to an 8 week time limit for employers to respond. Tribunals will be able to draw inferences from a deliberate refusal to answer or an evasive or equivocal reply. Employers will be asked whether they agree that specified persons are appropriate comparators doing equal work, whether the employee is receiving less pay and, if so, why.
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