New flexible working laws may be delayed, but employers should still consider requests.
Despite widespread press reports that business secretary Lord Mandelson planned to confirm that new family-friendly proposals, announced six months ago, are to be put on hold, he did not prove so robust in his views when appearing before a select committee.
Even so, it is clear that these proposals are under review and that a postponement in the current climate is a real possibility.
Extended rights
Since 2003, the right to request flexible working has been available to employees with more than six months’ service to care for a child under the age of six (or 18 if the child is disabled).
This right was extended to carers of adults in 2007, although certain relationship criteria must first be satisfied. The extension of the right has nonetheless been an objective of the government for some time.
In November 2007, Imelda Walsh, Sainsbury’s HR director, undertook an independent review into the extension of this right to parents of older children. Her recommendations were issued in May 2008 and were accepted by the government.
However, following last week’s confirmation that the proposals are to be reviewed closely, it appears the government’s announcement of these new rights back in May was premature.
The estimated 4.5 million parents of children up to the age of 16, who were destined to be given the right to request flexible working from next April, may not benefit from it.
Never mind employee representatives’ dismay at this news, the reaction of the Chartered Institute of Personnel and Development perhaps best reflects the true implications, stating that this move “sends out completely the wrong message”.
Major step
In a political climate where boosting the ability of parents to work has been a long-standing government objective, withdrawing, or greatly delaying, the flexible working proposals seems a major step. After all, the right to request flexible working is just that and, even in its extended form, would remain a mere opportunity to ask if an employer can accommodate, not a right to work flexibly.
To many observers, however, a U-turn over flexible working rights would be more a symbolic gesture with little real effect.
No complacency
Most employers understand there can be no room for complacency with any request for flexible working, whether or not a statutory requirement.
All applications should be considered, even if they come from workers who do not qualify under the legislation. This is not only best practice but will help an employer to avoid falling foul of sex discrimination legislation and, in light of other likely legal developments, even disability and age discrimination laws.
In most fields of work, the proportion of women who are able, in practice, to work standard or full-time hours is smaller than the proportion of men who can. This means that refusing to allow a woman to work flexibly may amount to unlawful indirect sex discrimination.
Justification
Whether or not refusing to allow a request for flexible working is unlawful will depend on the circumstances of each case but, with the advent of flexible working arrangements for senior executives in several organisations, justifying such a refusal can prove difficult.
Also, if women’s requests to work flexibly are routinely accepted, turning down a similar request from a man could also land an employer in hot water.
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Key points
- Consider all requests for flexible working
- Staff may still have recourse through sex discrimination and potentially other discrimination legislation
- If the request is made in writing, follow the procedures and rules in the Employment Rights Act 1996 and the Flexible Working Regulations. The law gives employees protection against victimisation.
Audrey Williams is head of discrimination law at Eversheds
