The right to request flexible working has been with us since 2003, when amendments to the Employment Rights Act 1996 came into force. Yet the recent high-profile case involving British Airways’ (BA) refusal of a flexible working request by pilot Jessica Starmer is one of the very few cases to have been considered by an employment tribunal.
Could this be explained by employers embracing the benefits of flexible working, or perhaps concern over the potential implications of refusing a request?
What is apparent from the BA case is that employment tribunals will look carefully at the reasons given by an employer for refusing a request. A request can only be made in writing by eligible employees who not only meet the qualifying service requirement, but who can also state that the request is being made to enable them to care for their children.
The Employment Rights Act specifies eight grounds that an employer can rely on to justify refusing a request:
– Burden of additional costs
– Detrimental effect on ability to meet customer demand
– Inability to reorganise work among existing staff
– Inability to recruit extra staff
– Detrimental impact on quality
– Impact on performance may be detrimental
– Insufficiency of work during the periods the employee proposes to work
– Planned structural changes.
The refusal must be accompanied by a sufficient explanation of why the relevant grounds apply. In considering the request, an employer has to follow a set procedure. Employees can bring proceedings against the employer if their request is refused, but there are very limited grounds under the Employment Rights Act to challenge a refusal at an employment tribunal. Proceedings can only be brought under the legislation if the employer has relied on incorrect facts in reaching its decision, or if there has been a breach of the statutory procedure.
As a result, an employee can only challenge a refusal if no grounds have been given for it, or if the reason given is not one of the eight permitted reasons. As the reasons are so broad, it is difficult to imagine an employer being unable to put forward one of the grounds.
So, given the limitations on successful claims under the Employment Rights Act, employees have continued to rely on the pre-existing rights established by case law to pursue a discrimination claim if their request is refused. Unlike the Employment Rights Act right, to make a claim under discrimination legislation, an employee does not require any qualifying service, the compensation is uncapped, and crucially, the employer cannot rely on compliance with a procedure to justify the refusal.
The BA case acts as a timely reminder that employers should always be aware of the independent discrimination claims which could follow a refusal of a request or failure to consider a request.
With the Employment Rights Act right, only one written request can be made a year. However, an employee can make numerous informal requests. If the employer does not take them seriously, discuss the request with the employee and give the request careful consideration, it could face a discrimination claim. This means that an employer cannot afford to ignore even the most flippant reference to a flexible working request.
Rather ironically, however, some employers that have been keen to accommodate staff requests have found that in fulfilling them, they have created an undesirable and potentially destabilising outcome.
One example of this was a situation involving a team of 12 staff – eight of whom were working in accordance with their flexible working request. The manager was faced with the possibility that two more staff would make similar requests for flexible working.
There appeared to be no problem refusing the requests relying on one of the eight grounds in the Employment Rights Act, as the manager could argue that she was unable to reorganise the work among the staff. But would this be enough to justify the refusal and defend a discrimination claim?
Perhaps this unpredictability explains the willingness of employers to embrace flexible working and avoid the potential pitfalls of refusing a request, as demonstrated in the successful outcome for Starmer in the BA case.
By Pam Loch, partner, Fladgate Fielder
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