Figures released by the DTI in 2005 showed that nearly a quarter of working parents with young children had requested flexible working since the right to request it was introduced in 2003, and that employers had accepted 81% of requests.
Despite this there has been a recent flurry of cases where employees have brought claims based on an employer’s refusal to allow them to work flexibly.
The right was introduced into the Employment Rights Act 1996 by the Employment Act 2002, and details are contained in two sets of regulations – the Flexible Working Rules. The cases provide useful pointers to the provisions that prudent employers should include in their flexible working policies.
An individual who has parental responsibility may ask to be allowed to work flexibly to care for a child under six years old or a disabled child under 18. To qualify, the employee must have been in continuous employment for at least 26 weeks before making such a request. An employee can only make one request per year.
The request must be submitted in writing, and must set out the effect of any change to their contract of employment and how the employer may accommodate the request. Unless the proposal is accepted outright, the employer must meet with the employee within 28 days of receiving the request. The employee can bring a companion with them to the meeting. Within 14 days of the meeting, the employer must write to the employee to either agree to the new work pattern, or to provide clear business grounds as to why the application cannot be accepted.
The request can only be refused for one or more of a number of specified reasons:
- the burden of additional costs involved
- the detrimental effect on customer demand
- the employer’s inability to reorganise work among existing staff, or to recruit new staff
- a detrimental impact on quality and/or performance which would arise
- insufficiency of work during the periods of work
- interference with any planned structural changes which the employer intends to implement.
An employee is entitled to appeal within 14 days of being notified of the decision and can submit claims to the tribunal following an unsuccessful appeal on certain grounds, including procedural irregularity and the use of incorrect facts in the employer’s reasoning. The compensation that the tribunal may award for such claims is capped at eight weeks’ pay.
When implementing your flexible working policy, do not predetermine the outcome of the meeting and remember that a tribunal can examine the facts objectively and see whether the ground for refusal is factually correct.
In Commotion Limited v Rutty the applicant resigned and claimed a breach of the flexible working provisions, unfair constructive dismissal and indirect sex discrimination when her flexible working request was denied.
The tribunal found that her employer had not used a reason within the flexible working rules for denying the request, and the manner in which her employer had dealt with the request amounted to a breach of the implied duty of trust and confidence. There had been no proper enquiry into Rutty’s request to work part-time and outdated reasons had been given for the refusal.
In Clarke v Telewest Communications the applicant asked to work different hours upon her return to work after maternity leave. Her employer refused her request. The tribunal held that the company had failed to meet the prescribed deadlines, had predetermined the outcome of meetings and had wholly failed to comply with the spirit of the legislation. Her claims of breach of the flexible working rules and constructive dismissal were upheld.
In Humphrey v Hardings Estate Agency the tribunal found that the company had “wholly flouted” the flexible working rules when it failed to meet with Humphrey to consider her application to work part-time after maternity leave and told her if she wanted to job-share she had to find someone to share the job with. The tribunal upheld her claims of constructive dismissal and indirect sex discrimination.
The case of Mehaffy v Dunnes Stores (UK) Limited made clear that tribunals will also penalise employers that follow the procedure, but have no real intention of acceding to the request. The tribunal here criticised the employer for not having a flexible working policy.
Note that employees are being advised to pursue a two-pronged approach of alleging a breach of the flexible working rules because of the limit on the amount that can be awarded under those provisions, to couple it with a constructive dismissal claim where a tribunal can award up to £58,400.
The attraction of using a breach of the flexible working rules as the basis of a claim, as opposed to claiming indirect sex discrimination, is that it is not necessary to establish that a provision, criterion or practice has been applied to the applicant.
The Work and Families Bill, currently going through Parliament and expected to become law in April 2007, will extend the right to request flexible working to carers. You will need to amend your policy to reflect this.
Janet Simpson is a professional support lawyer at Watson, Farley & Williams
What should flexible working policies include?
Flexible working policies should mirror the flexible working rules and must provide for the following:
- a meeting to be arranged within 28 days of a written request
- the employee’s right to be accompanied
- written confirmation of the decision to be sent within 14 days
- a refusal must be on one of the specified grounds
- a right to appeal against the decision
- an appeal to be held within 14 days of the employee’s notice of appeal.
Optional provisions could include:
- a requirement that, once a request is received, an investigation be carried out into the feasibility of the proposed changes
- the right to request to revert to the original conditions of employment once the period of care-giving is over
- extending the right to request flexible working to all employees, since existing policies will have to be amended to provide the right for carers from 2007.