The Employment Rights Act 1996 (ERA) as amended by the Flexible Working (Procedural Requirements) Regulations 2002, the Flexible Working (Eligibility, Complaint and Remedies) Regulations 2002 (the Regulations), the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 and the Flexible Working (Eligibility, Complaint and Remedies) (Amendment) Regulations 2007 provides a statutory right to request flexible working.
It sets out the requirements and procedures for an employee requesting a variation to their contract of employment (such as full-time to part-time work), an employer’s obligations in dealing with that request, and the consequences of failing to deal with the request properly.
The regulations provide that only a “qualifying employee” will be able to exercise the right to request flexible working arrangements to enable them to care for a child or an adult.
An employer will only be able to refuse a request for flexible working where there is a clear business reason.
However, problems occur when a request for flexible working is rejected, which could give rise to claims of indirect sex discrimination under the Sex Discrimination Act 1975 (SDA).
To be eligible to apply for flexible working, the individual must:
General
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be an employee
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have worked with their employer continuously for 26 weeks at the date the application is made
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not have made another application to work flexibly during the previous 12 months
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not be an agency worker
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not be a member of the Armed Forces.
For parents
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be responsible for the child as its parent
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have a child under six years of age, or under 18 years if disabled
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be making the application to enable them to care for the child.
For carers
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care for an adult who is in need of care
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be making the application to enable them to care for the adult.
2.1 Relationship between the parent and child
The Regulations state that an employee will satisfy the relationship requirements if they expect to have responsibility for child’s upbringing. In addition, the employee will have to meet one of the following conditions. They must be:
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the mother, father, adopter, guardian or foster parent of the child; or
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married to or the partner of the child’s mother, father, adopter, guardian or foster parent
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has, or expects to have responsibility for the upbringing of the child.
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2.2 Relationship between the carer and adult
The Regulations state that an employee will satisfy the relationship requirements if they expect to be caring for a person in need of care who is:
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married to or the partner or civil partner of the employee
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a near relative of the employee; or
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falls into neither category but is living at the same address as the employee. The definition of “partner” includes:
The definition of “near relative” includes:
The definition of “parent” includes:
An application for flexible working must comply with section 80F of the ERA. It must:
– state that it is such an application
– specify the flexible working pattern applied for and the date on which it is proposed the change should become effective
– explain what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, any such effect might be dealt with
– explain how the employee satisfies the requirements relating to the relationship with the child or adult
– be in writing (whether on paper, e-mail or fax)
– state whether a previous application has been made to the employer and, if so when
– be signed and dated.
An employee cannot make a further application for flexible working within 12 months of having submitted the previous one (section 80F(4) of the ERA).
3.1 The date of making an application
An employer will have a duty to consider applications for flexible working by following a specified procedure as prescribed in section 80G of the ERA. Each step is time dependent.
The regulations take the date when an application is made, to be the date on which it is received by the employer. They detail how this is determined when it is not handed directly to the employer. The onus of making an application lies with the employee.
An employer must comply with the procedure in section 80G(2) of the ERA. They must arrange a meeting to discuss the request within 28 days of receiving the application, which is consistent with other related employment legislation. An employer who fails to meet the strict timescale risks a claim from the employee to an employment tribunal.
An employer must provide written notification to an employer informing them of their decision concerning a request for flexible working within 14 days of the meeting, and must either state:
Request agreed
– A description of the new working pattern
– The date from which the new working pattern is to take effect
– The notice must be signed and dated.
Request rejected
– The business grounds for refusing the application as set out in section 80G(1)(b) of the ERA
– Sufficient explanations as to why the business grounds for refusal apply in the circumstances
– A statement that the employee has a right to appeal within 14 days of the decision
– The notice must be signed and dated.
An appeal must be in writing, set out the grounds of appeal and be signed and dated. Within 14 days of receiving the notice of appeal, the employer must hold a meeting with the employee to discuss the appeal. It must provide its decision within a further 14 days in a written statement that is signed and dated.
The employer and employee can extend the time limits for carrying out the procedures relating to a request for flexible working, but the employer must record this in writing. They must specify the date on which the extension will end, date the response and send it to the employee.
Where an employee is absent from work on annual leave or on sick leave on the day on which the application is made, the meeting to discuss the request for flexible working will commence on the day the employee returns to work or 28 days after the application is made, whichever is the sooner.
Where a meeting is held to discuss an application for flexible working, or relates to an appeal against a refusal to grant an application, an employee can reasonably request to be accompanied at the meeting.
The employer must permit the employee to be accompanied by a single companion who is:
– chosen by the employee and is a worker employed by the same employer as the employee;
– to be permitted to address the meeting (but not to answer questions on behalf of the employee), and
– to be permitted to confer with the employee during the meeting.
If an employee’s chosen companion is not available for the employer’s proposed meeting time, and the employee proposes an alternative which is convenient for everyone and falls before the end of the seven-day period starting the day after the proposed meeting, then the employer must change the meeting to the time suggested by the employee.
An employer shall permit a worker to take time off during working hours for the purpose of accompanying an employee in accordance with a request.
7 Breaches of the regulations by the employer
In specific circumstances, the employee will be able to take a disputed case to an employment tribunal. The regulations set out the breaches of the procedure (which includes detriment and dismissal associated with the right of accompaniment) that will entitle an employee to make a complaint to a tribunal.
Essentially, an employee will be able to take action wherever there is a breach in the procedure that is not a result of the application being rejected, withdrawn or dealt with through agreement.
A tribunal will not consider a complaint under the regulations in relation to a failure or threat unless the complaint is presented:
– before the end of the end of the three-month period starting with the date of the failure or threat; or
– within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that three-month period.
Where a disputed case is taken to an employment tribunal and the tribunal finds against the employer it could be ordered to reconsider the application and pay compensation to the employee. A tribunal does not have the power to order an employer to implement a flexible working arrangement.
The amount of compensation shall be an amount that the employment tribunal considers is just and equitable in all the circumstances, subject to a permitted maximum of two weeks’ pay.
A week’s pay will itself be limited to the maximum provided under section 227 of the ERA. This is reviewed annually and is currently £310.
Under section 47E of the ERA, an employee has the right not to be subjected to any detriment by any act or any deliberate failure to act by their employer on the basis that the employee has:
– made (or proposed to make) an application under section 80F of the ERA
– exercised (or proposed to exercise) a right conferred on them under section 80G of the ERA
– brought proceedings against the employer under section 80H of the ERA
– alleged the existence of any circumstance that would constitute a ground for bringing such proceedings.
This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10 of the ERA.
However, a person who is dismissed shall be regarded as unfairly dismissed for the purposes of section 104C of the ERA if the reason, or the principal reason for the dismissal is that they:
– made (or proposed to make) an application under section 80F of the ERA,
– exercised (or proposed to exercise) a right conferred on them under section 80G of the ERA
– brought proceedings against the employer under section 80H of the ERA
– alleged the existence of any circumstance that would constitute a ground for bringing such proceedings.
Sections 108 and 109 of the ERA (qualifying period of employment and upper age limit) shall not apply to the above.
The time limit for pursuing a claim under section 47 or section 104C of the ERA is the same as set above for breaches of the regulations. However, compensation is not limited in the same way.
In relation to detriment cases, a tribunal is specifically instructed to take a number of factors into account:
– the infringement to which the complaint relates
– any material loss stemming from the employer’s act or omission
– mitigation by the employee to reduce any loss
– what is just and equitable to award in the circumstances.
A tribunal is entitled to make an award for insult or injury to feelings.
In cases of unfair dismissal, there is a tribunal maximum for compensation, which is reviewed annually and is currently £60,600.
11 Indirect sex discrimination
Where a refusal of a request for flexible working is rejected, this could give rise to a claim of indirect sex discrimination under section 1(2)(b)(i) of the SDA.
This occurs where an employer applies a provision, criterion or practice which:
– is applied to a person of the opposite sex
– is to the detriment of a considerably larger proportion of women or men than the opposite sex
– cannot be shown to be justifiable irrespective of the sex of the person to whom it applied
– is to the detriment of that person as they cannot comply.
This also applies to a married person.
A requirement of full-time working tends to impact upon women adversely because of their childcare commitments. Therefore, the question is often one of justification.
Consequently, indirect discrimination occurs where an individual’s employment is subject to an unjustified condition that one sex (or married person) finds more difficult to meet, although the provision, criterion or practice in itself is “neutral”.
11.1 Equal Opportunities Commission’s code of practice
The EOC’s code of practice provides guidance and recommends good practice to employers with regard to eliminating discrimination in employment. Although this is not compulsory, it is admissible as evidence in sex discrimination claims. The Code recommends that employers should consider whether certain jobs could be performed on a part-time or flexible basis.
Paragraph 43 states:
‘There are other forms of action which could assist both employer and employee by helping to provide continuity of employment to working parents, many of whom will have valuable experience or skills.
Employers may wish to consider with their employees whether:
– certain jobs can be carried out on a part-time or flexi-time basis
– personal leave arrangements are adequate and available to both sexes. It should not be assumed that men may not need to undertake domestic responsibilities on occasion, especially at the time of childbirth
– childcare facilities are available locally, or whether it would be feasible to establish nursery facilities on the premises or combine with other employers to provide them
– residential training could be facilitated for employees with young children, eg where this type of training is necessary, by informing staff who are selected well in advance to enable them to make childcare and other personal arrangements. Employers with their own residential training centres could also consider whether childcare facilities might be provided
– the statutory maternity leave provisions could be enhanced – for example, by reducing the qualifying service period, extending the leave period, or giving access to part-time arrangements on return.
These arrangements, and others, are helpful to both sexes, but are of particular benefit to women in helping them to remain in gainful employment during the years of childrearing.’
11.2The law relating to sex discrimination
The component parts of section 1(2)(b)(i) of the SDA relating to flexible working are:
– A ‘provision or practice’ includes an obligation to work full-time.
– It is irrelevant that an applicant could comply with a ‘provision or practice’, eg by employing a childminder or carer to look after a child
– The proportion of women (or men) who can comply means “in practice” and not “physically”
– A ‘considerably larger proportion’ of women (or men) who can comply is a matter of fact and common usage
– The proportion of women (or men) who can comply, does not mean the actual number, and statistical arguments may be inappropriate
Where statistical material is used it is important to make the right comparisons:
– Where the number of women (or men) employed is so low as to be statistically insignificant (eg in a traditionally female job), a purely statistical approach may not be appropriate, and a tribunal may look at whether there would have been a disproportionate effect on women had there been more employed
– An employment tribunal is entitled to take judicial notice of the ordinary behaviour of men and women in determining who has primary care responsibilities for a child
To show adverse impact on an applicant’s ability to comply with a ‘provision or practice’, it is essential to define the appropriate “pool for comparison”, before the necessary comparison is attempted
Where the applicant produces statistical evidence of disproportionate effect which the respondent seeks to challenge, the respondent must produce rebutting statistics showing a more appropriate pool or at least produce evidence that the applicant’s statistics are distorted:
– The pool is a matter of logic for the employment tribunal
– A ‘provision or practice’ is satisfied in a case where no woman can comply, not just a smaller number
– It is necessary for the applicant to show discrimination as between men and women and not simply that the respondent has made an arbitrary decision for refusing flexible or part-time work
– ‘Detriment’ means putting at a disadvantage and relates to that particular woman/man.
Pool of comparison: example
A company producing widgets employs 100 employees – 80 men and 20 women on the factory floor, carrying out the same or similar duties. Due to childcare responsibilities, three women request to work part-time. The company refuses on account that the business needs everyone to work full-time.
The proportionate comparison is determined as follows:
(1) Calculate the number of women who work with widgets and perform the same or similar duties to the claimants – 20
(2) Calculate the number of men who work with widgets and perform the same or similar duties to the claimants – 80
(3) Calculate those of the claimants’ gender group who can comply with the provision or practice to work full-time – 17
(4) Calculate those of the opposite gender to the claimants who can comply with the provision or practice to work full-time – 80
(5) Divide (1) by (3) and then (2) by (4), which will provide a comparable proportion of the applicants’ gender group who can comply with the provision or practice to work full-time against the opposite gender group who can comply: 17 out of 20 (85 per cent) and 80 out of 80 (100 per cent).
(6) Compare the results in (5) which shows that a considerable larger proportion of the claimants’ gender group (85 per cent) cannot comply with the provision or practice to work full-time as opposed to that of the opposite gender group (100 per cent) who can comply.
An employer’s obligation is to avoid applying an unjustifiable provision or practice, which has a considerable disparate impact on the claimant’s group. The approach adopted by the European Court of Justice is similar to that provided by the SDA. Considerable disparity of treatment can be established more readily if the statistical evidence covers a long period, and the figures show a persistent and relatively constant difference between the applicant and the opposite gender group.
A lesser statistical disparity may suffice to show that the difference between the two gender groups is considerable, compared with a case where the statistics cover only a short period, or if they present an uneven picture:
14 Justification for flexible working
In considering whether the provision or practice is justified, an objective balance must be struck between the discriminatory effect of the provision or practice, and the reasonable needs of the person who applies it.
Reasonable ‘needs of the employer’ are the actual economic needs of the business and not other general factors, however laudable:
To establish that full-time work is justifiable, an employer must show that:
– the means chosen for achieving the employer’s objective serve a real need on the part of the undertaking
– that they are appropriate with a view to achieving the objective in question
– that they are necessary to that end.
Therefore, an employer will have to show that the employee’s particular job requires a full-time worker in respect of hours and work done.
This legislative guide is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.
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Flexible working and work-life balance: an introduction from direct.gov.uk
Flexible working and work-life balance – Department for Business, Enterprise and Regulatory Reform
Acas – The right to apply for flexible working
Interactive Flexible Working Guide
CIPD – Flexible working
Flexible working legislation
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Employment Rights Act 1996
Flexible Working (Procedural Requirements) Regulations 2002
Flexible Working (Eligibility, Complaint and Remedies) Regulations 2002
Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006
Flexible Working (Eligibility, Complaint and Remedies) (Amendment) Regulations 2007
Sex Discrimination Act 1975.
By Marc Jones, employment partner, Turbervilles – [email protected]
