Flexible Working from 30th June: Are you Ready?
The right to request flexible working is being extended from 30 June 2014 to all employees with 26 weeks’ service. This will inevitably mean that employers will have to deal with more employees wanting to change their working arrangements. It may also become more difficult to decide between requests where some can be agreed and others not.
In this post we look at what we can learn about flexible working requests from previous case law.
1. Never ignore a flexible working request
A Claim can arise if you ignore the flexible working request altogether. In one tribunal case, the 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.
There is a claim and a financial penalty of up to 8 weeks pay on any Employer who fails to go through a reasonable process.
Employees are required to put certain information into their request.
2. Train line managers in handling flexible working requests
In many cases, problems with flexible working originate with line managers, who should be trained how to deal with requests, and made aware of the implications of poor handling. In some cases, a manager’s mishandling of an application for flexible working meant that an employee resigned and successfully claimed constructive dismissal. Managers should never react negatively to requests; or indicate that the process is a waste of time as the request will not be granted.
3. A refusal of a flexible working request following maternity leave can be discriminatory
You must be able to justify refusing to allow a woman returning from maternity leave to move to part-time working. In one important case involving British Airways the employer’s decision to refuse a female pilot’s request to halve her hours was found to be unjustifiable. The court did not agree that the arguments put forward by the Employer justified the refusal, due mainly to a lack of evidence of the negative impact on the business.
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. The Court of Appeal rejected one employer’s evidence that its discriminatory action was justified by the impossibility of permitting part-time or job-share working arrangements. Again, clear evidence will be required to back up this assertion. A trial period is strongly recommended if the business case for refusal is not clear cut.
5. Do not assume men never need to work flexibly
Line Managers, and indeed some HR professionals, will be less used to dealing with flexible working requests from men – in the past requests were often made by women with young children. The right to request will not depend on child care needs from 30 June. After that date, an assumption that a woman’s application should always be favoured over a man’s application is likely to lead to a claim for sex discrimination. These carry the risk of unlimited compensation from a tribunal.
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 in the Equality Act. This is a risk particularly if the employee is disabled and needs adjustments to working hours. In one case, the tribunal held that the employer’s imposition of extended working hours led to the resignation of a disabled employee. There are nine protected characteristics under the Equality Act; a disability requires any Employer to consider making a reasonable adjustment for the Employee.
7. Flexible working is particularly important for parents with disabled children and carers of adult dependents
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. This is often referred to as “associative discrimination”. In a claim against a law firm, the employee succeeded in showing that she had been discriminated against because she is the primary carer for her disabled son and the employer’s discriminatory treatment included a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children. In another case the employer was found to have committed “associative disability discrimination” against an employee who required time off because her husband was seriously ill with leukemia.
8. You can cure flexible working procedural mistakes with an appeal
While an appeal stage is no longer a legal necessity once the new rules come into force on 30 June, it is still recommended by the ACAS guide on Flexible Working requests. Case law also shows us 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 perhaps, this could be rectified at the appeal stage when looked at afresh, for example by a second (more senior) manager who realises the earlier error and takes steps to rectify it.
9. Be careful about withdrawing flexible working arrangements
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 one case, the employer’s failure to take a methodical approach to reviewing the claimant’s flexible working led to a successful sex discrimination claim. It is advisable to offer a temporary trial period or set a formal review date in the agreement. Once a flexible working request has been agreed (or refused), the Employee cannot make another formal request for 12 months.
10. Review your own policies and train Managers to keep in line with the latest guidance
Acas has issued a code of practice for handling requests to work flexibly in a reasonable manner. This is supported by Guidance for Employers, also from ACAS. This is important guidance, and the amended law on the right to request flexible working is contained in the Children and Families Act 2014 and the Flexible Working Regulations 2014.
Employers are advised to make sure they are familiar with the new rules, ensure that Managers are trained and also that Flexible Working Policies are reviewed and kept up to date.
Why not save a lot of time and hard work by downloading our Flexible Working Policy. It’s easy to understand and use and is in template form to allow to you to add your company name and customisation to suite your requirements.
Requests under the new rules are likely to be in your “in-tray” soon!!
For more information around flexible working and the implications for your business, either give us a call or book onto our Contracts of Employment training day for plenty of interaction and case study work.
Employment Law Training Limited