Heather Falconer outlines what you need to do to comply with the new legal
duty to consider requests for flexible working
What are your duties on flexible working under the Employment Act 2002?
From 6 April 2003, employees with children under the age of six or disabled
children under 18, and at least six months’ service, will have the right to
request the hours, times and places they work to enable them to better fulfil
their responsibilities towards their children.
The law does not put the employer under an absolute duty to agree to the
request, but says they must consider the request seriously, hold a meeting with
the employee if you intend to refuse, and put the reasons for refusal in
writing. Even then, the employee can take the matter further – ultimately to
tribunal, if they so wish.
The detailed steps the employer must follow are set out in the Flexible
Working (Procedural Requirements) Regulations 2002 (www.dti.gov.uk/er/flexdraftregs.pdf).
On what grounds, and how, can we refuse if it doesn’t fit in with the
business?
If you refuse the application, you must state which of the grounds for
refusal specified in section 80G (1) (b) of the Employment Rights Act 1996
apply. Permitted grounds are currently:
1 The burden of additional costs
2 A detrimental effect on the ability to meet customer demand
3 An inability to reorganise work among existing staff
4 An inability to recruit additional staff
5 A detrimental impact on quality
6 A detrimental impact on performance
7 Insufficient work during the periods the employee proposes to work
8 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, though it suggests a "couple of
paragraphs" will usually be sufficient.
But common sense dictates that the more thorough the explanation, the more
chance the employee will not appeal against the decision or wish to take it
further. Bear in mind that in the event of a appeal, the tribunal will be empowered
to make a judgement about the sufficiency of the explanation given.
Is it possible to extend the time periods specified in the regulations?
Only if the employee agrees to this. If they do, 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.
Might we have to justify our refusal of a flexible working request to a
tribunal?
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 staff 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 1976.
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
request was justifiable, irrespective of the employee’s sex.
This test is decided by objective standards and will allow the tribunal to
challenge not just the employer’s procedure, but also the reasons for refusal.
Even more worryingly, the employer 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 also that it was a
proportionate means of achieving a legitimate aim.
This will leave much more scope for tribunals to question the reasonableness
or otherwise of the employer’s refusal. They 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.
So while following the procedures correctly will help the employer defend
sex discrimination claims, it certainly will not be enough in all cases. It
would be wise to make sure you have considered all the 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.
Could men use the law to push us into offering them flexible working?
Certainly, it would be impossible for a man to claim indirect discrimination
as this would depend on arguing that men as a group lose out by having to work
full-time standard patterns – given current social and economic trends, such an
argument would not get very far.
However, there have been cases where men have succeeded in claiming direct
discrimination under the Sex Discrimination Act. This involves demonstrating
that they have been treated less favourably than a comparable female worker
would have been in the circumstances.
Action points…
Ensure your business is equipped to deal consistently and
fairly with requests for flexible working
Develop a response to the new law as part of a wider policy on
flexible working and ensure it is communicated effectively to staff, and that
managers are comprehensively trained
Review your practices, policies and procedures for anything
that might be deemed to be indirectly discriminatory under the new, wider
definition
Consider whether these practices are a proportionate way of
achieving a legitimate aim
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