The extension of the right to request flexible working from 30 June 2014 to all employees with 26 weeks’ service will inevitably mean that employers will have to deal with more employees wanting to change their working arrangements. We look at what organisations can learn about flexible working requests from previous case law.
Flexible working changes: key XpertHR resources
Model policy on employees requesting flexible working (requests made on or after 30 June 2014)
1. Ignore flexible working requests at your peril
Claims can arise if the employer ignores the flexible working request altogether. In Clayton Brown v Cumbria County Council, the employment tribunal found that an employer had failed to respond to the formal right to request flexible working by an employee who had returned from maternity leave and that she had been forced to resign because of the uncertain situation in which this left her.
2. Train line managers in handling flexible working requests
In many cases, problems with flexible working originate with line managers, who should be instructed in how to deal with requests. In Wolstencroft v Waste Recycling Group Ltd, a manager’s disastrous mishandling of an application for flexible working meant that an employee resigned and successfully claimed constructive dismissal.
3. A refusal of a flexible working request following maternity leave can be discriminatory
Employers must be able to justify refusing to allow a woman returning from maternity leave to move to part-time working. In the important case of British Airways Plc v Starmer, the employer’s decision to refuse an employee a request to halve her hours was found to be unjustifiable.
4. You will have a hard time justifying a “full-timers only” policy
It will be particularly difficult for an employer to justify a blanket rule that all employees work full time. In Hardys and Hansons plc v Lax, the Court of Appeal rejected the employer’s evidence that its discriminatory action was justified by the impossibility of permitting part-time or job-share working arrangements.
5. Don’t assume men never need to work flexibly
HR professionals will be less used to dealing with flexible working requests from men, seeing as requests tend to be made by women with young children. However, an assumption that a woman’s application should always be favoured over a man’s application can be discriminatory, as Armstrong v DB Regio Tyne and Wear Ltd shows.
6. Don’t forget about employees’ other protected characteristics
With flexible working requests commonly following maternity leave, it is easy for employers to neglect the flexible working needs of employees with one of the other protected characteristics, particularly if the employee is disabled and needs adjustments to working hours. In Cooper v Magnet Ltd, the employment tribunal held that the employer’s imposition of extended working hours led to the resignation of a disabled employee.
7. Flexible working is particularly important for parents with disabled children and carers of adults
Employers should be aware that since the Equality Act 2010 came into force, legislation has provided that it is possible to commit disability discrimination against an employee who has a relative who has a disability. In Coleman v Attridge Law and another, the claimant brought a claim arguing that she had been discriminated against because she was the primary carer for her disabled son. She claimed that the employer’s discriminatory treatment included a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children. Similarly, in Price v Action-Tec Services Ltd t/a Associated Telecom Solutions, the employer was found to have committed “associative disability discrimination” against an employee who required time off because her husband was seriously ill with leukaemia.
8. You can cure flexible working procedural flaws on appeal
While an appeal stage is no longer a necessity once the new rules come into force, Little v Richmond Pharmacology Ltd shows why it is still a good idea for employers to offer employees an appeal against refusals to accommodate their flexible working requests. If the original decision was discriminatory, this could be rectified at the appeal stage when looked at afresh, for example by a second manager.
9. Be careful about withdrawing flexible working arrangements
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Employers are quite entitled to review employees’ existing flexible working arrangements, particularly if the new rules lead to a glut of requests, all of which the employer may not be able to accommodate. In Solicitors Regulation Authority v Mitchell, the employer’s failure to take a methodical approach to reviewing the claimant’s flexible working led to a successful sex discrimination claim.
10. Don’t take the new Acas code of practice on flexible working as gospel
While the Acas code of practice for handling requests to work flexibly in a reasonable manner is important guidance, employers should remember that the amended law on the right to request flexible working is contained in part 9 of the Children and Families Act 2014 and the Flexible Working Regulations 2014. As Toal and another v GB Oils Ltd showed, Acas codes of practice are useful guides, but they are not always definitive statements of the law.
