Flexible working: frequently asked questions

Phillip Chivers and Frances Vickery of Osborne Clarke conclude a series of articles on flexible working with some frequently asked questions, including questions that look at how employers should deal with flexible working requests that do not qualify under the statutory provisions.

Can employers ignore a request for a flexible pattern of work from an employee who has insufficient service to make a request under the statutory provisions?

Under reg.3 of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236), employees with less than 26 weeks' continuous employment with their employer are not eligible to make a request for a flexible pattern of work under the statutory provisions. An employee with insufficient service is unable to bring a claim against his or her employer in the employment tribunal that it failed to comply with its obligations under the provisions by ignoring a request or not following the requisite procedure. Therefore, in principle, if an employee with insufficient service makes a request for flexible working, the employer could ignore it.

However, this is not the end of the matter. If a request for flexible working is made, the employer should consider the broader implications of ignoring the request, in particular the risk of an indirect sex discrimination claim.

Indirect sex discrimination occurs where an employer operates a provision, criterion or practice (such as a requirement to work full time), which it applies equally to both sexes, but which puts one sex at a particular disadvantage and puts the employee in question at that disadvantage. To defend a claim, the employer must be able to demonstrate that the provision, criterion or practice is justified as a proportionate means of achieving a legitimate aim. It is a generally accepted principle that women have the greater childcare burden than men. Refusing a request for a flexible pattern of work is likely to disadvantage female employees.

Therefore, if a female employee with childcare responsibilities has a request for flexible working ignored or refused, she may argue that her employer's practice of not allowing employees to work flexibly constitutes indirect sex discrimination as it puts women at a disadvantage. The employer would need to be able to justify this practice, which may prove difficult in certain circumstances.

There is no service requirement for bringing sex discrimination claims. Even if the employee has less than 26 weeks' service, she could seek redress against her employer via this route. Compensation for sex discrimination is uncapped and may include damages for injury to feelings.

How should employers deal with requests for flexible working that are not made under the flexible working provisions, for example where an employee fails to follow the prescribed procedure or is ineligible to make a request?

Where an employee is eligible to make a request for a flexible pattern of work but fails to follow the correct procedure, the employer could either deal with the request regardless of the employee's failure, or invite him or her to submit the application in the correct way. This is preferable to refusing the request at the outset just because the employee failed to make a compliant formal application. Directing the employee towards the correct procedure reduces the likelihood of him or her later claiming that the employer failed to deal with a request for flexible working.

Where the employee is ineligible to make a flexible working request under the provisions, the employer could consider the request in any event, following a procedure based on the formal statutory procedure. Doing so will help to create a positive working environment in which employees feel that that they are treated equally. It is also likely to reduce the risk of a sex discrimination claim arising out the employer's failure to consider a request for flexible working.

Where an employee is eligible to make a request under the statutory provisions and follows the correct procedure, what are his or her rights if the request is refused?

If an employer refuses an employee's flexible working request it must notify the employee in writing and cite the permitted ground or grounds on which it is relying, which must fall within one of the permitted reasons set out in s.80G of the Employment Rights Act 1996. The written notification must also contain sufficient information as to why those grounds apply. The employee has the right to appeal against the decision to reject the request. The employee's appeal provides an opportunity for the employer to review its reason for refusing the request and ensure that it falls within one of the permitted reasons. Ideally, someone who has not been involved in the initial decision to refuse the request will hear the appeal.

Beyond the appeal, the employee may bring a claim in an employment tribunal that the employer has: not followed the correct procedure; refused the request for a reason that is not one of the permitted reasons; or based its decision on incorrect facts.

If the tribunal finds in favour of the employee, it may award him or her up to eight weeks' pay (subject to the statutory cap, currently £350 per week).

An employee whose request for a flexible pattern of work is refused (whether or not the request is made, or qualifies, under the statutory provisions) may bring a claim of sex discrimination, for which compensation is uncapped.

If an employee makes a flexible working request that is refused, how long must he or she wait before making another request?

Under s.80F(4) of the Act, an employee who has made a request for a flexible pattern of work is unable to make a further request under the provisions, to the same employer, for 12 months. The 12-month period runs from the date on which the initial application was made.

However, the employee may make an informal request. Although the employer will not be bound by the flexible working provisions to consider the request, it would be prudent for it to bear in mind the potential sex discrimination implications of not giving the request proper consideration. If the circumstances have changed, the refusal of the subsequent application may amount to indirect sex discrimination, even if the initial refusal could be justified.

Do adoptive parents and legal guardians qualify for the right to request flexible working?

Yes. Under the reg.3 of the Regulations, adoptive parents, guardians and foster carers can request flexible working.

In October 2007, the scope of the Regulations was extended in relation to adoptive parents by the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No.2) Regulations 2007 (SI 2007/2286). Employers must consider requests from employees where the adoption process has not been finalised but the employee has been approved by an adoption agency for the placing of a child, or where the employee has given notice of his or her intention to apply for an adoption order. Adoption from adoption agencies that are not UK based also qualify.

In addition, employers must consider requests from employees who foster children privately (rather than through fostering services), and from employees in whose favour a residence order is in force in respect of a child.

Employers must also consider requests from the spouse, civil partner or live-in partner of the above.

If a flexible working request is granted, can the employee request another change to working patterns at a later date?

Yes. An employee can make another formal request under the legislation after 12 months of the initial request. The employee is not prevented from making subsequent requests because he or she has already made a request. The employer will again have to follow the procedural requirements set out in the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207). (See Flexible working: case study in this series for more details on the flexible working procedure.)

If an employer has previously accepted requests for flexible working from female employees, and receives a request from a male employee that it does not want to accommodate, what are the risks of refusing that request?

An employer in this situation is vulnerable to claims on two counts. First, the employee could claim that the flexible working provisions have been breached. Second, he could claim direct sex discrimination.

Under the flexible working provisions, employers must comply with the proper procedure for dealing with requests for flexible working. Requests can be refused only on one of a number of permitted grounds. If the request is rejected the employee may claim in the employment tribunal that the employer failed to deal with his request properly, or that it rejected it on the basis of incorrect facts. Therefore the employer must be able to demonstrate that it followed the procedure, and that one of the permitted reasons for rejecting the request applied.

A claim of sex discrimination is a potentially more significant risk. The employee may bring a claim of direct discrimination on the ground that he was treated less favourably than his female colleagues, because of his sex. The employee in this situation would have actual comparators that he could point to, to establish his case of direct discrimination. However, it would also be possible for him to argue that a hypothetical female comparator in the same post would have been treated more favourably. The employer cannot justify direct sex discrimination. It must be able to show that the difference in treatment was unrelated to the employee's sex.

Next week's article will be the first in a series on statutory holiday entitlement and will be published on 5 May.

Phillip Chivers (phillip.chivers@osborneclarke.com) is a senior associate and Frances Vickery (frances.vickery@osborneclarke.com) is a solicitor at Osborne Clarke.

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