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If your child has special needs, you are likely to need more time off work than others. You may have to take your child to frequent hospital or therapy appointments, and to attend regular review meetings at school. You may need to finish earlier in the day, and you may not be able to work at all in school holidays. You can request flexible working, as lawyer Emma Satyamurti explains.

The right to request flexible working was introduced in 2003 and applied only to those with parental responsibility for young children provided certain conditions were met. Over the years it was extended to cover wider categories of carers, such as parents of older children and those caring for adult dependants.

But since June 2014, all employees with at least 26 weeks’ service have the right to request flexible working regardless of caring responsibilities. This is potentially beneficial for parents of children with special needs as it means that those in the wider support network (eg grandparents) can request flexible working without having primary caring responsibilities.

What rights do you have?

It is your legal right is to request flexible working; but you have no enshrined right to work flexibly. However employers can only refuse a request on the basis of specified business reasons, such as cost, staff levels and impact on service. The employer must act reasonably in dealing with the request, and should do so within a reasonable time frame (usually three months from receipt).

If a request is granted, this will usually be a permanent change to your contract. If the request is refused, an opportunity to appeal should normally be offered. Only one formal request can be made in a 12 month period.

What can I request?

Flexible working comes in many forms. Those that may be particularly relevant for parents of children with SEN include (any combination of):

  • part time hours
  • home-working
  • compressed hours (where there is no change in hours, but they are worked in fewer but longer days)
  • term-time working where the employee does not work during school holidays but remains employed
  • annualised hours, where the employee’s hours are set by reference to a year period rather than weekly, and the employee has some flexibility as to when to complete those hours

How do I make a request for flexible working?

In order to be a valid under the legislation, the request must:

  • be in writing and dated;
  • state that it is being made under s.80F Employment Rights Act 1996
  • state the change requested;
  • state how this will affect the employer and any steps to mitigate this (though it should noted that research shows the positive impact on business of flexible working in respect of increased productivity and staff retention)

How do you maximise the chances of your request succeeding?

It is a good idea to identify in your request any ways in which your proposed working arrangements will benefit your employer, and to anticipate any difficulties your request may pose and suggest how these might be mitigated. Offer as much flexibility as you can, and be ready to suggest a trial period if your employer is reluctant.

What if my request is refused or I am treated unfavourably for asking?

There are various legal protections that may help you if you find yourself in this position.

If the employer fails to comply with its statutory obligations, refuses the request based on incorrect facts, or wrongly treats the request as withdrawn, the Employment Tribunal can award up to eight weeks’ pay (a week’s pay is currently capped at £475).

Refusal of a request may also be unlawful discrimination. As women still generally have greater caring responsibilities than men, a refusal to allow flexible working may be indirect sex discrimination if it is not justified (if the applicant is a woman). If a man’s request is refused but would have been granted to a woman, this may be direct sex discrimination.  

If an employer refuses a request because the employee is the parent of a SEN child, but would have granted the request if made by a parent of a child without special needs, this may be disability discrimination by association. Various remedies are available on a successful claim for discrimination.

It is also unlawful for an employer to treat an employee badly because they have requested flexible working or because they have alleged that the employer has failed to comply with the law in considering the request.  

What about time off for my child's appointments?

Changes to the SEN regime last year gave a greater role to parents in the planning of their child’s education. What rights do you have to time off work to participate in the SEN process? Employees have the right to ‘reasonable’ unpaid time off to care for dependants, however this is intended to deal with unexpected events or emergencies.

Where you need time off to attend planned appointments or meetings you may therefore need to request annual leave, if your employer is not willing to give you unpaid leave. It is a good idea to request leave well in advance where possible, to minimise workplace disruption and make it more likely your employer will accommodate your request.

There are strict time limits for taking legal action if you experience difficulty with your employer so you should take legal advice promptly if that happens. This is a broad overview and is not a substitute for legal advice.

Emma Satyamurti is an Employment Law Partner at Leigh Day solicitors  www.leighday.co.uk

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