Dealing with flexible working requests – the risks

Woman with laptop and cat

Solicitors Chris Holme and Ruth Bonino examine a recent employment law case that highlights the risk of discrimination claims when dealing with flexible working issues – and that gives employers food for thought as they prepare for the extension to the right to request flexible working to be introduced on 30 June 2014.

Facts

The decision of Solicitors Regulation Authority v Mitchell in the Employment Appeal Tribunal (EAT) in February 2014 concerns Ms Mitchell, an employee of the Solicitors Regulation Authority (SRA), who was allowed to work partly from home to help with childcare. Another member of her team doing a similar job as her, Mr Singh, had a son with health difficulties and, because of his childcare arrangements and long commute, it was agreed he could work similar flexible hours.

Ten years after Ms Mitchell’s arrangement was first put in place, it was revoked by her manager. In its place, she was offered flexibility to allow her to do school runs, but only to work at home on an ad hoc basis. Ms Mitchell raised a grievance, which was rejected. She subsequently brought a claim for sex discrimination on the basis that she had been treated less favourably than Mr Singh, who, she alleged, was in a similar position to her.

Decision

Ms Mitchell won her claim for sex discrimination at the employment tribunal, and also when the SRA appealed to the EAT. Before the tribunal, Ms Mitchell’s manager gave evidence as to the reasons why the flexible working arrangement had been withdrawn. Among other things, she said she considered Ms Mitchell no longer needed to work from home as her children had started school and she only needed flexibility with start and finish times. However, in coming to its decision, the tribunal found what it considered to be inconsistencies with this evidence.

In any discrimination proceedings, the task of proving discrimination lies initially with the claimant. However, the burden of proof will shift to the employer if the facts show a prima facie case. For this to happen, there has to be “something more” than evidence of unreasonable treatment coupled with a different protected characteristic.

The EAT considered that what it found to be a “false explanation” of the less favourable treatment was enough to constitute that “something more”, so that discrimination could be inferred. Since the SRA had not provided a sufficient explanation for its treatment of Ms Mitchell and the tribunal had found inconsistencies in the manager’s evidence, discrimination was proved.

Implications

The case illustrates how potentially easy it is for employers to fall into the discrimination trap when dealing with flexible working requests or changing existing arrangements. To avoid claims, you need to be able to give a plausible explanation, unrelated to any particular protected characteristic (such as sex, age or disability), for any difference in treatment between one employee and another.

Your reasoning should be sound, sensible and consistent, and should consider alternatives as this will be examined by the tribunal. In this case, for example, the tribunal asked itself why the manager failed to take steps such as speaking to other members of the team about the flexibility they needed or if a rota could be set up.

Finally, your reasoning should be properly documented; as this case shows, if the tribunal does not believe your explanation or if it is misunderstood, this could lead to an inference of discrimination.

Will the risk of claims increase when the law is changed?

Probably, yes. When the right to request flexible working is extended to all eligible employees irrespective of their caring responsibilities, many employers will, for the first time, face some tricky situations. For example (and please pardon the stereotypes), how would you decide between a request from a male employee for a day off a week to play golf, and one from a female employee who wishes to spend a day a week with her baby?

Key points

  • The Government originally proposed that the extension to the right to request flexible working would come into force on 6 April 2014. This has been delayed by the Children and Families Bill not expecting to receive Royal Assent until 21 March 2014, with the new implementation date set as 30 June 2014.
  • Requests for flexible working made before 30 June will continue to be dealt with under the old procedure. Requests made on or after 30 June will be dealt with under the new procedure, and will be subject to the requirement to handle the application in a reasonable manner.
  • The judgement on Solicitors Regulation Authority v Mitchell was handed down in the EAT in February 2014. The case was decided under the Sex Discrimination Act 1975, but the outcome would no doubt have been the same under the Equality Act 2010.

Employers may only reject a request if they consider that a specified business ground applies. This will remain but, under the new rules, most of the procedural requirements will be replaced by a new duty on employers to deal with the request in a “reasonable manner”. Guidance is given in the draft Acas code, which provides that an employer should weigh up the benefits for the employee and the business as against any adverse business impact of implementing the changes.

Employers do not have to make value judgements about the most deserving cases, but it is difficult to see how you can follow the Acas guidance without considering the merits of the particular request. Weighing up the benefits to employees of their respective requests against each other is always going to be dangerous as it is so subjective. If you do, you must document your reasons because, as already mentioned above, failure to have a good explanation for what you did could lead a tribunal to infer discrimination even if, in reality, none exists.

The best strategy is to stick to the business reasons for rejecting or granting the request and make sure these are properly reasoned and documented.

What should employers be doing now?

Employers should think about making changes to their flexible working policies in anticipation of the law changing on 30 June 2014. A policy will help to establish the ground rules to ensure a consistent approach. HR and line managers will need to be trained on how to deal with requests in compliance with the policy. They will have to understand the need to record carefully the reasons for rejecting requests and show how they have tried to weigh up the benefits of the proposed arrangements (while avoiding stereotypes) against the adverse consequences to the business.

About Chris Holme and Ruth Bonino

Chris Holme is a partner and Ruth Bonino a professional support lawyer at Clyde & Co LLP.