The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002

Explanatory Note

(This note is not part of the Regulations)

These Regulations relate to the new statutory right to request a variation to the terms and conditions of an employee’s contract of employment to enable the employee to care for a child. This new right is provided for in the Employment Act 2002 and the relevant provisions are incorporated by that Act into the Employment Rights Act 1996 (“the 1996 Act”).

Entitlement to request a contract variation is available under regulation 3 to an employee with 26 weeks' qualifying service, who is either the mother, father, adopter, guardian, or foster parent of the child, or the partner or spouse of any of these relatives, and who has or expects to have responsibility for the upbringing of the child.

Regulation 4 imposes requirements as to the form of the application. Regulation 5 provides when an application is taken as having been made by the employee.

Regulation 6 specifies which breaches of the Flexible Working (Procedural Requirements) Regulations 2002 entitle the employee to make a complaint to an employment tribunal notwithstanding the fact that his application has not been disposed of by agreement or withdrawn.

Regulation 7 provides that the maximum amount of compensation that an employment tribunal may award where it finds a complaint under section 80H well-founded is 8 weeks' pay. A week’s pay is to be calculated in accordance with Chapter 2 of Part 14 of the 1996 Act. The maximum amount of a week’s pay is currently £250 but this sum may be varied by the Secretary of State by Order.

A Regulatory Impact Assessment of the costs and benefits of these Regulations to business has been placed in the libraries of both Houses of Parliament. Copies are available to the public from the Employment Relations Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET. The Assessment is also accessible at the Directorate’s website www.dti.gov.uk/er.