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Employees with children under the age of six, disabled children aged under 18, or an adult in need of care may have the right to apply to work flexibly to enable them to care for the child or adult in need of care. Employers have a duty to consider such requests seriously. |
It is currently proposed that the right to request flexible working arrangements is extended to all those with children under the age of 16 (as opposed to six), disabled children under 18 and adults in need of care. If these proposals are accepted, it is likely that the law will be changed to this effect in April 2009.
In order to make a request the employee must either be the child’s mother, father, adopter, guardian or foster parent; or be married to or the civil partner or partner of the child’s mother, father, adopter, guardian or foster parent.
Alternatively, they must be a carer who cares, or expects to be caring for a spouse, partner, civil partner or relative or an adult in need of care who lives at the same address as the person being cared for.
The employee must have worked for the employer for at least 26 weeks before they can make a request to work flexibly. Employees are required to make any request in writing within a specified time frame. They must also include certain information in the written request for the request to be valid.
If eligible, the employee will be able to request a change to their hours of work, a change to the number of hours worked, or to work from a different location (for example, from home).
Considering the request: the statutory procedure
The employer must respond to the request by either agreeing to the request in writing, which will change the terms and conditions of employment permanently, or inviting the employee to a meeting to discuss the request further. The employee can request to take a companion to that meeting. A decision must be made and confirmed to the employee after that meeting. If the request is refused, the employee must be offered a right of appeal. It is crucial to note that each step must be taken within a specified time frame.
If you are an employer, it is a good idea to have a flexible working policy setting out the staged procedure and the relevant time frames, which should make the process more manageable.
Refusing a request for flexible working
A request can only be refused on the following grounds as set out in the flexible working legislation:
- The burden of additional costs;
- 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; or
- Planned structural changes.
Employee’s right to bring a claim
If the employer fails to take any of the above steps within the required time frames, or refuses the request for a reason not listed above, the employee will be able to bring an employment tribunal claim under the Flexible Working Regulations 2002 and can be awarded compensation of up to 8 weeks pay. If the employee’s request to be accompanied is refused, an additional 2 weeks pay will be awarded. The tribunal also has the power to order the employer to reconsider the employee’s request.
The scope for challenging a decision which has been made by following the prescribed procedure and for a prescribed reason is very limited.
Indirect Sex Discrimination
The sex discrimination legislation protects workers from being dismissed or being subjected to any other detriment on the grounds of their sex.
The type of discrimination potentially relevant in flexible working cases is indirect discrimination. Indirect discrimination occurs where a “provision, criterion or practice” is applied to both male and female employees which puts or would generally put a woman at a particular disadvantage when compared with men (or vice versa). The employer can defend a claim for indirect sex discrimination if it can show that the “provision, criterion or practice” is justified and proportionate (i.e. it does not go beyond what is necessary).
A common example of indirect sex discrimination is where an employer refuses to allow a woman to work part-time or adjust her hours for childcare reasons. Statistically, inflexibility over working hours tends to disadvantage women more than men, although this does need to be proved in each individual case. Whether it is unlawful for the employer to refuse requests for flexible working depends on the facts of each case and whether the employer can justify insisting on, for example, full-time work or particular start and finish times.
Constructive Unfair Dismissal
Only employees with more than one year’s continuous service can bring a claim for constructive unfair dismissal.
In order to succeed in a claim for constructive unfair dismissal, an employee must have resigned as a direct result of a fundamental breach to their contract of employment on the part of their employer.
If an employee has made a request to work flexibly which is refused, and the refusal amounts to unlawful indirect sex discrimination, you may be entitled to resign and claim constructive unfair dismissal as a result of that discrimination. Please note that this is a complex area of law and constructive unfair dismissal claims are particularly difficult to win. Employees should take specialist employment law advice before taking this course of action.
If you are an employer and would like assistance in dealing with a request from an employee to work flexibly, if an employee or ex-employee has raised a grievance or an employment tribunal claim against you and you are seeking representation, or if you would like to implement a flexible working policy, please contact Sarah Cruice, employment specialist, on 0114 253 6547 or at sarah.cruice@ironmongercurtis.com and we will be happy to assist you.
If you are an employee and would like to make an application to work flexibly, or if you have made a request but no procedure was followed by your employer and / or you believe has been unfairly refused or that the reason for refusal may be discriminatory on the grounds of your sex, please contact our specialist employment law team on 0114 253 6559 for advice. Please note that if you wish to bring a claim under the Flexible Working Regulations 2002, for sex discrimination or for constructive unfair dismissal, you act within three months of the date of the act complained of (e.g. the date the application was refused) so do not delay in seeking advice!
