Flexible working: case study

Matthew Briggs and Nicola Doran of Osborne Clarke continue a series of articles on flexible working with a case study that looks at the right to request a flexible working pattern, and the procedure for making, and dealing with, flexible working requests.

Pauline is an account manager for SpeedPax Ltd, a distribution company. She used to work for DistributeIt until it was bought by SpeedPax in January 2009. Pauline has two children aged eight and 13. She works 9am to 5pm, Monday to Friday.

In 2005, when her son was four and starting school, Pauline made a request under the flexible working provisions to reduce her working hours to 10am to 3pm. DistributeIt rejected the request on the ground that agreeing to it would have had a detrimental effect on its ability to meet customer demand. Following growth of the business, in 2007 a second account manager was employed by DistributeIt.

SpeedPax is concerned about the global economic crisis and the prospect of declining customer demand. Senior managers are meeting soon to discuss the situation and the potential impact on staffing levels.

Pauline is not particularly happy at SpeedPax. The culture is very different to that at DistributeIt. Life at home is also increasingly stressful, with her eight-year old son struggling at school and her teenage daughter repeatedly disappearing for hours at a time. Pauline speaks to her manager, William, saying that she would like to work a three-day week and fewer hours each day so that she can collect her son from school and spend more time with her children. William says that he "will have a think and get back to her".

Is Pauline eligible to make a request for flexible working under the statutory provisions?

To make a request for a flexible pattern of work, an individual must:

• be an employee (workers and independent contractors are not eligible);
• have 26 weeks' continuous employment when the application is made; and
• not have made an application to work flexibly in the preceding 12 months.

Employees may make an application for a flexible pattern of work to care for a child (who must be under 17 (or under 18 if disabled)), or a dependent adult.

Where a request is made in respect of caring for a child, the employee must be either:

• the child's parent, adoptive parent, guardian, special guardian or foster parent; or
• the spouse, civil partner or live-in partner of the child's parent, adoptive parent, guardian, special guardian or foster parent.

Pauline is an employee and she has at least 26 weeks' continuous employment. Under TUPE her employment with DistributeIt counts towards her continuous service. She has not made an application for flexible working in the preceding 12 months as her previous application was in 2005. Therefore she is eligible to make a request now. She is the mother of children under the age of 17, therefore she can make an application in respect of them.

Can Pauline request a change to her hours and times of work?

A request for a flexible pattern of work under the statutory provisions can be a request to change the number of hours worked, the pattern of working hours and/or the location of work. Pauline's request to change the number of days, and the times that she works, is a potentially valid request under the provisions.

Has Pauline followed the correct procedure?

No. A verbal request is not a valid application under the provisions. Section 80F of the Employment Rights Act 1996 specifies the application process that employees must follow. Pauline must submit a dated written application to SpeedPax stating:

• that her request is an application to change her terms and conditions;
• her relationship to the children in respect of whom the application is being made;
• the details of the working pattern that she is requesting and the date that she proposes the change will take effect;
• what effect (if any) she believes that the change will have on SpeedPax and how this could be addressed; and
• that she has made a previous application for flexible working, and when she made that application.

William should advise Pauline to make a formal request. He should not raise her expectations or display a negative attitude to her request. If he reacts in a negative manner at the outset, this could increase the likelihood of Pauline bringing a claim against SpeedPax in the future, for example for constructive dismissal and/or sex discrimination (see below).

Pauline follows William's advice and submits a request according to the statutory requirements. What must SpeedPax do next?

Once it has received a valid application for a flexible pattern of work, Speedpax must follow a defined procedure in accordance with the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207).

Within 28 days of receiving Pauline's request, SpeedPax must either accept the application and notify her of this in writing, or arrange a meeting to discuss her application. Pauline is entitled to be accompanied at the meeting by another SpeedPax worker.

Within 14 days of the meeting, SpeedPax must write to Pauline either agreeing to her request and setting a start date for the new arrangements, or refusing her request and providing a full explanation of the grounds for the rejection (see below).

Time limits may be extended only by mutual agreement between Pauline and SpeedPax.

William, who holds the meeting, wants to refuse Pauline's application because he believes that it will be difficult to meet customer demand if she works part time.

Can SpeedPax refuse Pauline's request?

SpeedPax can refuse Pauline's request, but only on the ground of one of a number of permitted reasons, namely:

• the burden of additional cost to its business;
• a detrimental effect on its ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff;
• a detrimental impact on quality or performance;
• the lack of work at the time that Pauline proposes to work; or
• planned structural changes.

SpeedPax should ensure that its written rejection is dated, and it must cite the permitted ground or grounds on which it is relying. The written notification must also contain sufficient information as to why those grounds apply. SpeedPax cannot refuse Pauline's request on the ground that it does not consider that her personal circumstances justify a reduction in hours, or because her previous request was refused. The business, and the economic climate in which it operates, have changed since she made her first application, and another account manager has been recruited. Her application should be considered according to the current situation.

The written notification must also advise Pauline of her right of appeal and the procedure for doing so. Pauline can appeal within 14 days of the rejection of her request. SpeedPax must hold a meeting within 14 days of receiving Pauline's appeal and she has the right to be accompanied at the meeting. The appeal should be conducted by someone who has not previously been involved in the process. SpeedPax must deliver a response to the appeal within 14 days of the meeting. If it is declining Pauline's request following the appeal it must give its grounds for rejection and an explanation as to why those grounds apply. Again, time limits can be changed only by agreement.

What are the risks for SpeedPax if it fails to deal with Pauline's request properly?

If SpeedPax does not deal with Pauline's request according to the defined procedure, she could bring a claim against it in the employment tribunal. She could bring a claim against SpeedPax if it:

• fails to hold an initial meeting within 28 days;
• fails to notify her of its decision within 14 days of the initial or appeal meeting;
• fails to hold an appeal meeting within 14 days of her notice of appeal;
• refuses her request for a reason other than one of the permitted grounds; or
• rejects her request on incorrect facts.

The tribunal cannot question the commercial rationale or the business reasons behind SpeedPax's decision, or substitute SpeedPax's decision with its own. However, it may order SpeedPax to reconsider its decision and it can award up to eight weeks' pay (subject to the statutory cap, currently £350 per week) as compensation for SpeedPax's failings. In addition, if SpeedPax fails to allow Pauline to be accompanied at the meeting, two weeks' compensation (subject to the statutory cap) may be awarded.

Could SpeedPax be vulnerable to other claims arising from Pauline's flexible working request?

Yes. Pauline could bring a number of claims against SpeedPax in connection with her flexible working request. The potential claims that Pauline could bring are as follows.

Detrimental treatment - If SpeedPax victimises Pauline or subjects her to any other detriment for making a flexible working request, she could bring a claim against it. The tribunal may award such compensation as it considers just and equitable, taking into account the particular infringement complained of and the financial loss that is attributable to SpeedPax's act or failure to act.

Sex discrimination - If SpeedPax refuses Pauline's request for a flexible working pattern, whether or not she has made it under the statutory provisions, she could bring an indirect sex discrimination claim. It is a generally accepted principle that women have the greater childcare burden than men. Therefore, requiring a job to be performed on a full-time basis is likely to have a disproportionate impact on women. If SpeedPax cannot objectively justify the requirement for Pauline to work full time her claim will succeed.

Damages for sex discrimination are uncapped and include compensation for injury to feelings and financial loss.

Constructive dismissal - If Pauline's request is refused without a good reason, she could argue that the implied contractual term of trust and confidence between her and SpeedPax has been undermined, particularly if her request has not been considered properly. If a term of her contract is breached, she could resign and claim unfair constructive dismissal.

Unfair dismissal - If SpeedPax dismisses Pauline or selects her for redundancy because she has made a request for flexible working this will be an automatically unfair dismissal, even if there is a genuine redundancy situation.

What should SpeedPax do to avoid a successful claim by Pauline?

To reduce the risk of a successful claim, SpeedPax should investigate all the options and look at ways that it could try to accommodate Pauline's request. Whoever is hearing Pauline's appeal should talk to William to find out what practical difficulties he envisages and how these could be overcome. He or she should also consult other members of the team, to see whether or not some of Pauline's work can be redistributed. SpeedPax must ensure that, if it rejects Pauline's request, it can demonstrate that it has considered it seriously and has investigated ways of trying to accommodate it. The reason for turning it down must fall within one of the permitted reasons. SpeedPax should also document its actions so that it can demonstrate that it has followed the proper procedure for considering flexible working requests, and met the time limits.

The manager hearing Pauline's appeal decides that it should be possible to accommodate Pauline's request. She also realises that if Pauline works fewer hours, this could lessen the need for SpeedPax to make redundancies in the department. She decides to agree to Pauline's request. What must SpeedPax do next?

SpeedPax must inform Pauline, in writing and within 14 days of the appeal meeting, that it agrees to her request and confirm the new work pattern and when it will take effect. SpeedPax should also issue Pauline with either a new contract or a letter amending her existing contract, setting out the revised terms. The change will be a permanent change to Pauline's terms and conditions. Any subsequent change (including a change back to Pauline's original working pattern) will be another contractual variation and will require her express agreement. However, it is not uncommon for employers to make a change subject to a specific "trial period" so that the matter can be reviewed after the change has been brought into effect.

Next week's article will be FAQs on flexible working and will be published on 28 April.

Matthew Briggs (matthew.briggs@osborneclarke.com) is an associate and Nicola Doran (Nicola.Doran@osborneclarke.com) is a solicitor at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com