The new duty to consider seriously requests for flexible working will
introduce a business harm test by the back door, lawyers are warning.
The Work and Parents Taskforce which reported last month stressed the
"light-touch" nature of the new duty to consider. It promised it
would not force employers to justify a refusal by refernce to objective
standards at tribunal.
It said tribunals "will not have the power to question the employer’s
actual reasons for declining a request". But in reality, the new law will
work in tandem with the Sex Discrimination Act 1975 to allow tribunals to do
just that.
"I suspect it will become common practice to join a claim under the new
law to a SDA claim, because the requirement for objective justification in the
SDA is much stronger," said Rhodri McDonald, a lawyer at the Equal
Opportunities Commission. "There are now a sufficient number of cases that
show a requirement to work full time can fall foul of the SDA where a woman can
show it subjects her to a detriment."
In a case last month a former police constable won her appeal against Avon
and Somerset Police on the grounds that its refusal to allow her to work
regular shifts for childcare reasons breached the SDA.
Many men would also be able to bring claims under a different part of the
SDA. A decision last month against car repair firm John Martin Group adds to a
growing body of case law showing that men can claim direct discrimination where
requests for part-time working are refused if they can demonstrate a woman
colleague would have been treated more favourably.
"The Taskforce’s assertion that employers can justify any refusal in ‘a
couple of paragraphs’ is misleading," said Sue Nickson, head of employment
at Hammond Suddards Edge. "As a minimum, employers are going to have to
show objective justification in every case because that is already the
law."
Tribunals will have the power to send cases back to the employer for
reconsideration and also award compensation.
The Government estimates the new law will result in half a million extra
requests for flexible working each year. It asserts that 80 per cent of
requests will be settled internally and only 1 per cent will end up at
tribunal. It will encourage employees to use internal appeals procedures and
alternative dispute resolution such as mediation, but proposes no restriction
on employees taking their cases to tribunal once internal procedures are
exhausted.
The new procedure
– An employer receiving a written request
for flexible arrangements must set a meeting within four weeks
– The employer will have to explain the business reasons for
any refusal in writing within two weeks of the meeting
– The employee will have two weeks to appeal a refusal
internally
– The employer must provide a final decision in writing within
two weeks of the appeal meeting
– Employees who are still not satisfied may appeal externally
via mediation, arbitration or tribunal
What they said
Clare Chapman
Group HR director, Tesco
"The way it will be implemented
will remove a lot of the flexibility that employers seek to embrace through
existing HR policies and it will produce additional challenges"
Bob Watson
HR director, Bupa
"Requiring employers to give
requests for flexible work serious consideration is open to all sorts of
interpretation. It seems it has been left to tribunals to do it"
Ralph Tribe
HR director, Getty Images
"I don’t think it’s red tape
because if someone raised a legitimate enquiry you’d respond formally anyway"
Mike Emmott
Employee relations adviser, CIPD
"The institute welcomes the
emphasis on sorting out concerns about flexible working through discussion"
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Mike Taylor
Group HR director, Lorne Stewart
"To set up this bureaucratic
audit trail is unnecessary"
