How to avoid discrimination claims with flexible working requests

The line manager of a small but important department in the business is approached by a couple of members of staff wanting to work flexibly. Historically, he has always granted these requests where possible, but the most recent have the potential to affect the team’s ability to function. It is a situation that even the most well-meaning and ethical of employers would dread.

On 30 June 2014, the right to request flexible working was extended to all employees with 26 weeks’ service, not just those with caring responsibilities. The volume and breadth of requests is likely to go up, and situations such as the one above could leave line managers in a quandary about how to deal with competing requests in a compliant yet sensitive way.

Risk of claims “still high”

Furthermore, if requests come from individuals who both have one of the nine protected characteristics covered in the Equality Act, a refusal could land that employer with a discrimination claim. So how can employers ensure their overall response to flexible working requests is consistent and unbiased?

According to Benedict Gorner, a partner at law firm DLA Piper, the new regulations are intended to be less cumbersome than the existing regime, which focused heavily on employers sticking to a process for dealing with requests. “There had been a lot of cases where employers were being tripped up for not following the procedure, even if there was a substantive reason to turn down the claim,” he says.

But, while the procedure may be less constrictive, the risk for potential claims has not abated. In the past, the majority of requests for flexible working arrangements have tended to come from women with childcare responsibilities. A poll of attendees at a recent Personnel Today webinar on flexible working revealed that, at 56% of respondents’ places of work, “almost all” requests came from women, while a further 33% said women made up the vast majority of requests.

At professional services firm EY, flexible working is embedded into a long-term change programme, so the requests it receives tend to come from a more diverse population.

All employees are entitled to request to work flexibly and managers will try to accommodate different working patterns – whether that is to fit in an exercise class or make a conference call at home due to a global time difference, providing there isn’t a negative impact on the business. “We make sure we have a business conversation about it; does it make commercial sense?” says Lynn Rattigan, deputy chief operating officer for EY in the UK, who works a four-day week herself.

“We recognised that the workforce is more diverse than ever and if we want the right staff in our business we need to look at our working practices. By allowing everyone to work flexibly we retain good people, plus younger people coming into the business have different ideas of what ‘good’ looks like in terms of how, when and where they work.”

Managing expectations

Jeanette Wheeler, a partner in the employment team at Birketts, says achieving a good balance when juggling requests is about managing expectations: “Any employer who agrees to flexible working requests thinks that if they agree to one, they must agree to all. Make it clear in your policy that each case is considered on its own merits.”

The guidance from ACAS on dealing with different requests is limited, and doesn’t deal with every potential conflicting scenario that could arise. Where there are no protected characteristics associated with the request – perhaps the individual wants to pursue a hobby – there are eight grounds stated in the legislation on which the employer can refuse, including the burden of additional cost and a detrimental impact on performance.

When it comes to avoiding unlawful discrimination, ACAS is less helpful. It states: “Requests should be considered in the order in which they are received. Having considered and approved the first request, the employer should remember that the business context has now changed and can be taken into account when considering the second request… They are not required by the law to make value judgements about the most deserving request.”

But how practicable is this in reality? What if there is no good reason to turn down the first request and the second is more difficult to accommodate because the situation has changed? If the latter request comes from someone with a protected characteristic, a refusal carries a risk of discrimination. “The reality is you’ve got to protect yourself as an employer,” argues Susan Evans, a partner at Lester Aldridge. “If there are competing requests, an employer should consider which is most likely to result in a claim before deciding if any of the requests are refused.”

As Philip Landau, of Landau Zeffertt Weir solicitors points out: “Those tasked with making the decisions may end up in the unenviable position of being damned if they do and damned if they don’t.

“For example, if an employer refuses a request to work flexibly from a female employee to care for her children, then they could be faced with allegations of indirect discrimination because of her sex, unless the employer can objectively justify its decision. But then if an employer focused entirely on allowing women to work flexibly, then that too could be seen as direct discrimination (against male staff).”

This happened in the case of Walkingshaw v John Martin Group, where a male vehicle technician applied for flexible working but was turned down. The company had historically granted requests from other female employees to work part-time or deal with family responsibilities. A tribunal held that Mr Walkingshaw had been subject to direct sex discrimination and awarded him compensation.

Accommodating requests

In some situations, employers will also face other legal obligations to consider requests. Under the Equality Act, for example, the requirement to make “reasonable adjustments” may mean altering someone’s hours or work location – and this requirement will need to be juggled with any other flexible working requests that could, if refused, result in a claim.

“With protected characteristics, you have to show that your decision to turn the request down was a proportionate means of achieving a legitimate aim,” adds Wheeler. “If your reasons for refusal can be in any way linked to the protected characteristic, this is where discrimination law kicks in and your obligation to justify how you made your decision is much stronger.”

Darren Newman, a barrister and consultant editor at XpertHR, says most employers would be sensible to approach requests in a more holistic way than on the “first-come, first-served” basis that ACAS suggests. “If you’ve approached requests in a fair way, you should be mitigating your risk of a claim anyway,” he advises.

In a tribunal, judges will need to be reassured that an employer has looked at all possibilities before turning down a request, which could be anything from looking at potential job shares to weighing up the cost of cover when needed.

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Including a review clause in any new terms and conditions will also help when dealing with future requests. “Clever employers will say, when they agree to a request, that it’s for six months, a year, or ‘until anytime we think is necessary for business reasons, with reasonable notice’,” says Wheeler.

Trying to accommodate requests in a positive way, as is the case at EY, can prove to be a useful way to engage staff and encourage them to be more productive. “Draw up a policy that says ‘we have a flexible working policy provided that the needs of the business are met’, setting out expectations on both sides,” advises Gorner. “If properly managed, flexible working can be a valuable tool. The motivation side is just as, if not more important than, the legal risk.”