Can you afford to say no?

Parents
or others with responsibility for children will soon have the right to request
flexible working patterns. We explain what these changes could mean for
employers

From 6 April employees with children under six or disabled children under 18
and at least six months’ service will have the right to request working
patterns – that is the hours, times and places they work – that allow them
better to meet their responsibilities towards young children. The law does not
put the employer under an absolute duty to agree to the request, but says it
must consider the request seriously, hold a meeting with the employee if it
intends to refuse, and put reasons for refusal in writing. Even then, the
employee can take the matter further, ultimately to tribunal, if he or she
wishes.

Who can make a request for flexible working under the legislation?

The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002
provide that the person making the application must be an employee who:

– Has been continuously employed for no fewer than 26 weeks

– Is either the mother, father, adopter, guardian or foster parent of the
child or the partner of such a person

– Has or expects to have responsibility for the upbringing of the child

What is the procedure for seriously considering a request for flexible
working?

The detailed steps the employer must follow are set out in the Flexible
Working (Procedural Requirements) Regulations 2002. The basic procedure is as
follows.

Step 1: An employee produces a request for flexible working setting
out the pattern he or she wishes to work and how this might be accommodated
within the business.

Step 2:Within 28 days of receiving the request, you must either:

a) write to the employee, specifying how the contract will change and from
what date. There is no specified time period for setting up the new
arrangements – it will depend on how much action is required, recruiting a job share
partner, for example, or just rewriting the contract of employment. Eight weeks
is suggested as good practice.

b) set up a meeting with the employee at a time convenient to both parties
to discuss the request. The employee can bring a companion to the meeting. If
you have already decided you cannot accommodate the working pattern, you should
consider and put forward other ways you can help.

Step 3: You must then write to the employee within 14 days of the
meeting either to:

– Agree the new pattern and a start date, or n Confirm the compromise
suggested and the meeting and date you agreed with the employee for a response,
or

– Explain why you cannot meet the request, and set out how to appeal if he
or she is not happy with your decision

Step 4: If the employee appeals against the decision, you should hold
another meeting to discuss the appeal within 14 days of receiving notification
of the appeal. The employee can bring someone to this meeting, too. Ideally
someone more senior in the company should hold this meeting. Timing of the
meeting should be convenient to both employer and employee. Note that if you
turn down the request and the employee takes a case under the Sex
Discrimination Act 1975, this is the starting point for the three-month time limit
for bringing a claim.

Step 5: Write to the employee within 14 days of the appeal meeting,
informing him or her of the decision, stating grounds for the decision and
sufficient explanation of the grounds.

Step 6: If the employee is still unhappy, your options are to bring
in an external person to try to reach agreement, opt for binding arbitration or
for the employee to file a claim with an employment tribunal. The employee will
need to sign away the right to go to tribunal if binding arbitration is used.

Q On what grounds, and how, can we refuse the request?

A If you refuse the application, you have to state which of the
grounds for refusal specified in section 80G (1) (b) of the Employment Rights
Act 1996 apply. Permitted grounds are currently:

– The burden of additional costs

– A detrimental effect on ability to meet customer demand

– An inability to reorganise work among existing staff

– An inability to recruit additional staff

– A detrimental impact on quality

– A detrimental impact on performance

– Insufficient work during the periods the employee proposes to work

– Planned structural changes.

You are then required to give "sufficient explanation" of the
grounds for refusal in the particular case. The Government does not give much
guidance as to what sufficient means, although it suggests a "couple of
paragraphs" will usually be sufficient. However, commonsense dictates that
the more thorough the explanation, the more chance there will be that the
employee will not appeal the decision or wish to take it further. Bear in mind
also that in the event of a tribunal claim, the tribunal will be empowered to
make a judgement about the sufficiency of the explanation given.

Q Is it possible to extend the time periods specified in the regulations?

A Only if the employee agrees to this. You must record this agreement
specifying which period is being extended and the date of the new time limit.
This should be dated and a copy sent to the employee.

Q What if the person who would normally consider the request isn’t
available?

A Where the person is absent on annual or sick leave on the day the
application is made, the 28 day period for replying to the request will kick in
on the day he or she returns to work or 28 days after the application,
whichever is the sooner.

Q Who can accompany the individual to meetings and what can they
contribute?

A If an employee reasonably requests to be accompanied by a
colleague, that is a ‘worker’ employed by the same employer, at either an initial
or appeal meeting, you must allow the colleague not only to attend the meeting
but also to address it – although not to answer questions on behalf of the
employee – and to confer with the employee. If the accompanying colleague
cannot make the time originally proposed for the meeting, you must accept an
alternative time convenient to all parties as long as it falls within a week of
the original meeting time. If you refuse or threaten to refuse the employee’s
right to be accompanied, he or she can make a tribunal claim within three
months and it can order compensation of up to two weeks’ pay.

Q Will we have to justify our refusal of a flexible working request to a
tribunal?

A Under the new law, tribunals will not have the power to question
the employer’s reasons for declining a request, as long as it has followed the
correct procedure and given sufficient explanation of the business reasons.

However, there is a strong likelihood that employees wishing to challenge
their employer’s refusal in court will bring not only a claim under the
Employment Rights Act 1996, but also a claim under the Sex Discrimination Act
1975.

Women, who are more likely to take advantage of the new right than men, will
be tempted to bring a claim of indirect sex discrimination. In this case, the
employer would have to satisfy the tribunal that its refusal to allow the
employee’s request was justifiable, irrespective of the employee’s sex (see
case round up, page 8).

This is a test decided on objective standards and will allow the tribunal to
challenge not just the employer’s procedure but also the reasons for refusal.
More worryingly, the employer’s defence for indirect discrimination will change
in 2003. Employers will have to show not only that their refusal to allow flexible
working was objectively justified but that it was also a proportionate means of
achieving a legitimate aim.

It will leave much more scope for tribunals to question the reasonableness
or otherwise of the employer’s refusal. It will be able, for example, to
consider alternative ways in which the employer could fulfil its staffing needs
rather than requiring a particular employee to work full time from the office.

While following the procedures correctly will help the employer defend sex
discrimination claims, it will certainly not be enough in all cases. It would
be wise to ensure you have considered all options and alternatives before
turning down a request. Ask yourself if requiring the person to work full time
in the office is reasonable in all the circumstances.

Q What about employees who are not eligible to request flexible working
under the new rules – are they stuck with their inflexible hours?

A Sex discrimination law has been evolving for the past few years,
especially the rules on indirect sex discrimination. It is set to undergo
further changes by the end of 2003. Indirect discrimination is currently
defined as a provision, criterion or practice with which a substantially
smaller proportion of a particular sex can comply.

Under the new proposals, applicants will no longer have to show that a
substantially smaller proportion of their sex can comply with the provision,
criterion or practice. They will only have to show that it puts their sex at a
substantial disadvantage.

This will make it easier for applicants because it does away with the need
for detailed, often complex, statistical evidence of the number of people of
different sexes who could or could not comply with the provision.

While statistical evidence may remain important in some cases, tribunals
will not need to rely on it to the exclusion of other forms of social and
economic expert evidence.

It will enable many employees to push much harder to have requests for
flexible working patterns accepted, and make it harder for employers to justify
refusing these – whether or not they are eligible under the new law. Many
women, for example, will be able to claim that a requirement to work full-time,
standard patterns of employment is unlawfully discriminatory because it puts
women, who are more likely to have childcare responsibilities, at a substantial
disadvantage compared to men.

Q Could men use the law to push employers into offering them flexible
working?

A Certainly, there have been cases where men have succeeded in claiming
direct discrimination under the Sex Discrimination Act. This means
demonstrating that they have been treated less favourably than a comparable
female worker would have been in the circumstances.

Find out more…

On the new regulations at www.legislation.hmso.gov.uk/si/si2002/20023207.htmxp

Demand for flexible work may be heavy

In a recent survey of 4,000
jobseekers carried out by the DTI and recruitment website reed.co.uk, almost
half (46 per cent) chose flexible working as the benefit they would most look
for in their next job, ahead of gym membership (7 per cent) or a company car
(10 per cent).

And this wasn’t just among women – 43 per cent of men put
flexible working at the top of their benefits wish list.

The poll was carried out as part of a publicity campaign by the
DTI to raise awareness of the new right to request flexible working. Other
findings included:

– A third of respondents said they would rather have the
opportunity to work flexible hours than an extra £1,000 per year in pay

– Nearly 70 per cent said they would like the chance to work
more flexibly when necessary

– More than three-quarters (77 per cent) of parents with
children under six said work-life balance was an important factor in deciding
whether to apply for a new job

– Six out of 10 workers in general said work-life balance was
an important factor in assessing a potential new job.

Comments are closed.