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FLEXIBLE WORKING – THE RIGHT TO APPLY

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					                                        Corporate Services
                                           Human Resources



FLEXIBLE WORKING – THE RIGHT TO APPLY

Caring for a Child

From 6 April 2003 parents will have the right to request flexible working arrangements to enable
them to work more flexibly.

The purpose of this request must be to enable the employee to care for a child under the age of 6
years, or under 18 years if the child is disabled.

Caring for an Adult

From 6 April 2007, carers of adults have the right to request flexible working arrangements to
enable them to work more flexibly. The Work & Families Act defines carers as an employee who
is or expects to be caring for an adult who:

   is married to, or the partner or civil partner of the employee; or
   is a relative * of the employee; or
   falls into neither category but lives at the same address as the employee

* a ‘relative’ is defined as parents, parents-in-law, adult child, adopted adult child, siblings,
siblings-in-law, uncles, aunts, grandparents or step-relatives

‘Caring’ – Relevant Types of Care
Patterns of care-giving will vary considerably from individual to individual, both in the nature and
the extent of the care given. The sort of care-giving activities that carers of adults who request
flexible working are likely to be involved in to a greater or lesser extent include:

       help with personal care (e.g. dressing, bathing, toileting);
       help with mobility (e.g. walking, getting in and out of bed);
       nursing tasks (e.g. daily blood checking; changing dressings);
       giving/supervising medicines;
       escorting to appointments (e.g. General Practitioner (GP), hospital, chiropodist;
       supervision of the person being looked after;
       emotional support;
       keeping the care recipient company;
       practical household tasks (e.g. preparing meals, doing shopping, domestic labour);
       help with financial matters or paperwork.

This is not an exhaustive list: some activities feature more prominently for some groups of carers
than others. Carers of older people, for example, may need to ensure proper eating, while carers
of people with mental health problems may need to order and supervise medication. Carers of
people who have mental problems and who are in paid work may also need to help the person
they care for with routine tasks such as getting to work.

General

It will not provide the employee with an automatic right to work flexibly as there will always be
circumstances when the Council is unable to accommodate an employee’s request or desired
work pattern. It aims to facilitate discussion and encourage both the employee and the Council to
consider flexible working patterns and to find a solution that suits both.




                                                -1-
If a change is agreed, it will be PERMANENT and there will be no right to revert back to the
former arrangement. If you are unsure about exercising your right to apply or not eligible
under this strategy, you are welcome to discuss this with Human Resources or your trade
union representative beforehand.

1. Eligibility

The right applies to any employee who:-

a) Caring for a Child

-       has 26 weeks’ continuous NWDC service at the date the application is made
-       has a child under six, or under 18 in the case of a disabled child
-       is responsible for the upbringing of the child
-       is the biological parent, guardian, adopter or foster carer of the child; or
-       is married to or the partner (including same sex partner) of one of the above and living
        with the child
                                                                                             th
-       make the application no later than two weeks before the child’s sixth birthday or 18
        birthday in the case of a disabled child
-       is applying to enable him or her to care for the child
-       is not an agency worker
-       has not made another application to work flexibly under the right during the past 12
        months

If a request is rejected a further request cannot be made for 12 months


b) Caring for an Adult

-       has 26 weeks’ continuous NWDC service at the date the application is made
-       is responsible for caring for an adult
-       is applying to enable him or her to care for the adult
-       is not an agency worker
-       has not made another application to work flexibly under the right during the past 12
        months

If a request is rejected a further request cannot be made for 12 months

2. Scope of a request

Eligible employees will be able to request:-

-       a change to the hours they work
-       a change to the times when they are required to work
-       to work from home for all or some of their contractual hours

This covers working patterns such as annualised hours, home-working, job-sharing, staggered
hours and term-time working.

The Council has the scope to properly refuse an application if it can be shown that there is a
sound business reason why flexible working arrangements can not be introduced, e.g. high
additional costs, detrimental effect on ability to meet customer demand, inability to re-organise
work among existing employees, inability to recruit additional staff etc.

3. How to apply for Flexible Working:-

You can use the form at the end of this policy. The employee must apply in writing to their Head
of Service/Team Leader (which includes e.mail and fax) and:-
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3.1      State that it is an application under the legal right to request flexible working. It is
         important before making an application the employee gives careful consideration to which
         working pattern will help them best care for their child or adult. Consider any financial
         implications it might have on them in cases where the desired working pattern will involve
         a drop in salary and any effects it will have on the business area and how these might be
         accommodated.

3.2      State whether a previous application has been made and, if so, when.

3.3      Set out the working pattern they wish to adopt. Please note that the effective date of any
         agreed changes (including any consequent reduction in working hours) will be the date of
         the letter your Head of Service/Team Leader sends to you confirming or refusing your
         request. The new working pattern will commence on the agreed date of return to work.

3.4      Explain the effect they envisage it will have on their service area, including how it might
         be accommodated.

3.5      Explain how the employee satisfies the requirements relating to the relationship with the
         child or adult

3.5.1    Sign and date the request.




4     How will the application for Flexible Working be processed?

4.1      The Head of Service will meet with the employee to discuss the request within 28 days
         after the date on which the application has been received. Where an application is made
         by e.mail or fax, it is taken to be received on the day it was transmitted. This will provide
         an opportunity to discuss any problems and consider alternatives. The employee has the
         right to be accompanied at the meeting by a colleague who works for North Wiltshire
         District Council who may be a Trade Union Representative. The colleague is permitted to
         address the meeting (but not to answer questions on behalf of the employee and may
         confer with the employee during the meeting). If the employee’s chosen colleague is
         unavailable at the time proposed for a meeting then the meeting must be postponed to a
         time proposed by the employee provided this is convenient to the manger and within
         seven days beginning with the day after the day initially proposed by the manager.

4.2      If the Head of Service/Team Leader who would normally consider the request is absent
         from work due to sickness or annual leave when an application is received, the period
         commences on the date the individual returns or 28 days after the application is made,
         whichever is sooner.

4.3      The Head of Service/Team Leader will write to the employee within 14 days after the
         date of the meeting to either confirm agreement to a new work pattern and a start date or
         confirm the request has been refused. Please note that the effective date of any agreed
         changes (and any consequent reduction in working hours) will be the date of the letter.
         Your new working pattern will commence on the agreed date of return to work.

         Human Resources will send you an official amendment to your contract as appropriate
         shortly after this date. If the request is refused the letter will state the grounds and
         explain why it applies in the circumstances and give details of the right and procedure to
         Appeal. The only valid grounds for rejecting a request are provided in Section 80G of the
         Employment Rights Act 1996. These are as follows:-

         -       The burden of additional costs
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        -       Detrimental effect on ability to meet customer demand
        -       Inability to re-organise work among existing staff
        -       Inability to recruit additional staff
        -       Detrimental impact on quality
        -       Detrimental impact on performance
        -       Insufficiency of work during the periods the employee proposes to work
        -       Planned structural changes

4.4     There will be occasions when the Head of Service may need more time to explore an
        alternative working pattern and therefore time limits can be extended where the employer
        and employee agree.

4.5     The employee will have the right to appeal against his/her Head of Service’s/Team
        Leader’s decision within 14 days of it being notified to them to a Deputy Chief Executive
        Officer who is independent of the original decision.

4.6     The appeal will be held within 14 days after the date on which the employee gives notice
        of their Appeal.

4.7     The decision on the Appeal will be given to the employee within 14 days after the date of
        the Appeal. Again if the request is refused the reasons for this will be provided to the
        employee.

4.8     In a minority of cases some employees will have grounds to pursue their request with
        third party involvement. This may be by referring their request to ACAS, to an
        Employment Tribunal or by using another form of dispute resolution. An employee is only
        able to take a claim to an Employment Tribunal in specific circumstances and the Council
        would have to demonstrate that the correct procedures have been followed.

4.9     The circumstances where an employee can make a claim to an Employment Tribunal
        would be where the Council:-

        -       Failed to hold the initial meeting or appeal meeting
        -       Failed to provide notice of a decision in accordance with the timescale
        -       Rejected the application based on incorrect facts (a claim for this reason can only
                be brought after the application has been rejected on appeal)

        A claim cannot be made where the application has been disposed of by agreement or
        withdrawn.

        A complaint must be brought within 3 months of:-

        -       the date of the failure to follow the procedure, e.g. after the relevant time limit has
                elapsed, or
        -       the date of the rejection of the request following the appeal

        or, if this is not reasonably practicable, in such further period as the tribunal considers
        reasonable.

5       Withdrawal of application for Flexible Working by the employee

The Council will treat an application as withdrawn where the employee has:-

(a)     notified his/her Head of Service/Team Leader whether verbally or in writing that he/she is
        withdrawing the application;




                                               -4-
(b)        without reasonable cause, failed to attend a meeting to discuss his/her request more than
           once; or

(c)        without reasonable cause, refused to provide the Head of Service/Team Leader with
           information he/she requires in order to assess whether the contract variation should be
           agreed to.

Human Resources will confirm in writing the withdrawal of the employee’s application.

6          Appeal against Manager’s decision to reject Flexible Working Request

      a) An employee can appeal against the Head of Service’s/Team Leader’s decision to reject
         a flexible working request. A Deputy Chief Executive Officer or Head of Service who is
         independent of the original decision will hear the appeal and this will be the final authority
         in the matter.

      b) Where the rejection of a request for flexible working has been made by the Deputy Chief
         Executive the appeal will be heard by another Deputy Chief Executive Officer and this will
         be the final authority in the matter.

      c)   The appeal will be conducted as per the procedure set out in Appendix A.

      d) Human Resources will provide an adviser to the Deputy Chief Executive Officer.




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                                                                                      Appendix A

GUIDANCE NOTES AND APPEALS PROCEDURE – FLEXIBLE WORKING

(Please note that under this procedure there is no right to appeal against the outcome of an
informal discussion of a request for Flexible Working.)

The letter of appeal should be in writing to the Human Resources Head of Service stating the
reasons for the Appeal. There are two different grounds for appeal:-

The Facts – if no new evidence has arisen since the original decision by the Head of
Service/Deputy Chief Executive Officer who rejected the request for Flexible Working, the
Appeals Chairman will consider the facts to ensure that the original decision could have been
supported by the evidence produced. If new evidence has arisen since the original decision the
Appeal Chairman will refer the case back to the Head of Service to consider the new evidence. If
the request is still rejected the Deputy Chief Executive Officer will then look at all of the facts
considered by the Head of Service/Team Leader.

Procedural Fault – The Human Resources Head of Service will arrange for the matter to be heard
by a Head of Service/Deputy Chief Executive Officer who is independent of the original decision.
The Human Resources Head of Service will consider whether the procedural fault could have
affected the fairness of the decision. If it is considered that there was no effect the Panel and the
employee will be advised of this by the Human Resources Head of Service prior to the hearing. If
it is considered that the procedural fault has had an effect on the fairness of the decision the case
will be referred back to the Head of Service by the Human Resources Head of Service to
reconsider the original decision based on the facts. The employee will then have a further right of
appeal following the outcome of the new hearing. Please note a procedural fault could lead to a
complaint to an employment tribunal.

The employee will have the right to be accompanied by a work colleague who may be a Trade
Union Representative.

An appeal (under normal circumstances) will take place within 14 working days of the receipt of
notification of appeal being made to the Human Resources Head of Service.

The date the Appeal is held may be extended subject to both parties agreeing to the extension
and clear reasons are specified as to the reasons for the extension and the date it is extended to.

All those involved in the appeal will be informed in writing at least 3 working days prior to the
date of the Appeal, of the date, time, location and the names of those persons who will be
present. All the evidence presented during the original request to the Head of Service/Deputy
Chief Executive Officer, the record of the decision, the employee’s reasons for appeal and the
previous Head of Service/Deputy Chief Executive Officer’s statement, will accompany this letter.

If not already provided, the employee will provide at least 3 working days prior to the date of the
Appeal, copies of any documents, which he/she intends to produce in rebuttal.

Possible outcomes

1. Appeal Dismissed. Where the Chairman dismisses the appeal, the grounds for the decision
   and a sufficient explanation as to why those grounds apply will be stated..

2. Appeal Upheld. Where the Chairman upholds the Appeal, the contract variation will be
   specified together with the effective date of the variation.

The procedure for conducting an appeal is set out below:-


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APPEALS PROCEDURE

1.    The Chairman will introduce those present and state the reason for their presence.

2.    The Chairman will state the purpose of the Appeal and the procedure to be followed.

3.    The Chairman will check that all the papers and supporting evidence has been circulated
      and received.

4.    The Head of Service/Deputy Chief Executive Officer who heard the original request will
      present the management case.

5.    The appellant or his/her companion will be given an opportunity to ask questions of the
      Head of Service/Deputy Chief Executive Officer on the evidence given by him/her.

6.    The Chairman hearing the appeal may ask questions of the Head of Service/Deputy
      Chief Executive Officer.

7.    The appellant or his/her companion to put his/her case in the presence of the Head of
      Service/Deputy Chief Executive Officer.

8.    The Head of Service/Deputy Chief Executive Officer to have an opportunity to ask
      questions of the appellant.

9.    The Chairman hearing the appeal may ask questions of the appellant.

10.   The Head of Service/Deputy Chief Executive Officer will have an opportunity to sum up.

11.   The appellant or his/her representative will have an opportunity to sum up.

12.   The Head of Service/Deputy Chief Executive Officer and the appellant and his/her
      companion will withdraw.

13.   The Chairman with the officer appointed to advise, to deliberate in private only recalling
      the Council’s Head of Service/Deputy Chief Executive Officer and the appellant to clear
      points of uncertainty on evidence already given. If recall is necessary both parties are to
      return notwithstanding only one is concerned with the point giving rise to doubt.

14.   The decision of the Chairman shall be conveyed to the parties personally or in writing and
      may be determined within 14 days after the date of the Appeal.




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                      FLEXIBLE WORKING - THE RIGHT TO APPLY

To: ……………………………………………………… Head of Service/Team Leader
(copy to Human Resources)

From: …………………………………………………………………….

Under Section 80F of the Employment Rights Act 1996, I would like to apply for a contract
variation.

The working pattern I wish to adopt from ……………………. (this should be no earlier than 8
weeks from the date the application is made) is as follows (days and times):-

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

I would like this working pattern to commence from …………………………………………….(date)

(I understand that the actual effective date of any changes will be the date of the letter my Head
of Service/Team Leader sends to me confirming these changes.)

For Childcare:

If this request has been made during a period of maternity leave, I understand that the leave
accrued during my additional maternity leave period will be taken prior to the date of my return for
pay and administrative purposes, thereby delaying my actual first day back at work.

I envisage the effect this change to my working pattern will have on my service area, including
how it might be accommodated is as follows:-

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………


My relationship to the adult/child is ……………………………………….. and the purpose of my
request to work flexibly is as follows:-

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

(The Council has the scope to properly refuse an application if it can be shown that there is a
sound business reason why flexible working arrangements can not be introduced, e.g. high
additional costs, detrimental effect on ability to meet customer demand, inability to re-organise
work among existing employees, inability to recruit additional staff etc.)


Signed …………………………………………… Date …………………………………………………


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