Flexible working: overview

Jenny Wotherspoon and Helen Dallimore of Osborne Clarke begin a series of articles on flexible working with an overview of the provisions on the right to request flexible working. They also consider the possibility of sex discrimination claims arising where a request for flexible working is refused.

Background

The right to request a flexible pattern of work was introduced in April 2003 by the Employment Act 2002, which added new provisions into the Employment Rights Act 1996. Under the 1996 Act, employers must consider qualifying requests for flexible working and follow the procedure set out in the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207).

A request for a flexible pattern of work can include a request to reduce the number of hours worked, or a change to the pattern of work. Job sharing arrangements, part-time work, term-time work and homeworking come within the meaning of flexible working. Where a request is accepted it results in a permanent change to the employee's terms and conditions unless a different arrangement is agreed.

It is relatively easy for employers to meet their obligations under the flexible working provisions, and the penalties for failing to do so are limited. However, employees whose requests for flexible working are refused may also have a claim for indirect sex discrimination. As compensation for successful claims of sex discrimination is uncapped, limiting the risk of a claim is usually the primary concern for an employer faced with a request for flexible working.

Qualification for the right to request flexible working

The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236) set out the criteria for qualifying for the right to request a flexible pattern of work. The right applies only to employees and does not extend to workers or independent contractors. Employees must have 26 weeks' service when they make the request and must not have made an application for flexible working in the previous year.

The right was originally limited to employees with responsibility for a child under the age of six or a disabled child (ie a child in receipt of disability living allowance) under the age of 18.

On 6 April 2007, the right to request flexible working was extended to employees with caring responsibilities for a dependent adult.

On 6 April 2009, the right was extended further by the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009 (SI 2009/595), to employees with responsibility for a child under the age of 17. This extension was a response to an independent government review, conducted by Imelda Walsh, HR director of J Sainsbury plc (Right to request flexible working - a review of how to extend the right to request flexible working to parents of older children (PDF format, 139K) (on the BERR website)), which was published in May 2008.

Employees with children aged 17 who are not disabled do not qualify for the right to make a request. A private member's Bill (Equal Pay and Flexible Working Bill (PDF format, 69K) (on the Parliament website)),which addresses this issue, was introduced into the House of Lords on 8 December 2008, although it is unlikely to be passed as law.

Responsibility for care

Where an employee makes an application in respect of caring for a child, he or she must expect to have responsibility for the child's upbringing, be making the application to care for the child and 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.

Grandparents do not qualify for the right to make a request and this exclusion has been widely criticised. Recent research (a study by HSBC and a YouGov poll commissioned by the charity Grandparents Plus (on its website)) indicates that grandparents are playing an increasing role in the care of their grandchildren, particularly given the effects of the economic downturn. However, there has been no indication from the Government that it intends to extend the flexible working provisions to address this perceived gap.

Where the employee is making an application in respect of caring for an adult, he or she must expect to be caring for an adult who is:

  • married to, or the civil partner or live-in partner of, the employee;
  • a relative of the employee; or
  • living at the same address as the employee.

Procedure for flexible working requests

Employees who wish to make a request for flexible working under the statutory provisions must make their request in writing and state:

  • that the request is an application to change terms and conditions;
  • their relationship to the child or adult in question;
  • the details of the working pattern requested and the date from which it is proposed that the change is effective;
  • what effect (if any) they believe that the change will have on the employer and how this could be addressed; and
  • whether or not a previous application for flexible working has been made and, if so, when.

The request must also be dated.

If the employer agrees to the request it should confirm this in writing and make amendments to the contract of employment. If it does not agree to the request immediately, the employer must meet the employee to discuss the application, confirm the outcome of the meeting in writing, and arrange an appeal (if necessary) within certain timeframes set out in the legislation.

Employers can reject requests on the grounds of:

  • the burden of additional cost to the business;
  • a detrimental effect on their 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 the employee proposes to work; or
  • planned structural changes.

There is no requirement for the decision to be reasonable. However, the employer must believe that one of the above reasons applies and not base its decision on incorrect facts.

Sex discrimination

Employers that refuse a request for a flexible pattern of work, whether or not the request qualifies under the flexible working provisions, are vulnerable to claims under the Sex Discrimination Act 1975 (SDA).

Direct sex discrimination occurs where an employer treats an employee less favourably because of his or her sex. In the context of a flexible working request, rejecting a male employee's application to work flexibly where it can be shown that a female employee's application would be accepted is likely to constitute direct discrimination. However, in practice, the main risk for employers that reject a request for flexible working is a claim for indirect sex discrimination.

Indirect sex discrimination occurs where an employer applies a provision, criterion or practice (such as the need to work full time or particular hours) that:

  • applies or would apply to both sexes;
  • puts one sex at a particular disadvantage;
  • places a particular employee at that disadvantage; and
  • cannot be justified.

Case law (London Underground Ltd v Edwards (No.2) [1998] IRLR 364 CA) has established the principle that women have a greater childcare burden than men. This is typically the starting point for employment tribunals to accept that a requirement for all employees to work full time will place women at a disadvantage (although this approach has been challenged in the context of higher-paid women who can afford childcare). Therefore, if an employer rejects a request for flexible working, it will need to be able to show that this decision was objectively justified, ie that the requirement to work full time (or particular set hours) is a proportionate means of achieving a legitimate aim.

Considering requests

When considering a request for flexible working, employers should undertake a rigorous analysis of the nature of the duties carried out by the employee and the implications for the business of allowing the request. In particular, employers should consider whether or not agreeing to the request will adversely affect the business, and whether or not minor changes can be made to the job or to other employees' roles (subject to their contracts) that would make the proposal work, without significant cost or disruption to overall performance.

Employers should also:

  • deal with each request with an open mind and consider each application on its own merits, depending on the nature of the role;
  • avoid having blanket policies (for example, setting a limit on part-time working of four days a week), when dealing with requests;
  • consider whether or not there are specific practical reasons for insisting on full-time work;
  • be able to demonstrate that they have balanced the needs of the business against the effect on the employee of refusing the request; and
  • consult with employees about potential alternative patterns of working (if the original request cannot be accommodated).

A key difference between a claim under the flexible working provisions and a claim under the SDA is that the tribunal is not permitted to analyse the employer's reasons for rejecting a request for flexible working under these provisions, whereas in a sex discrimination claim, whether or not the employer's actions in rejecting the request are justified is crucial to deciding the claim.

Remedies

An employee can complain to an employment tribunal that his or her employer failed to follow the flexible working procedures, rejected the request on grounds other than those permitted, or based the rejection on incorrect facts. The employment tribunal may order the employer to reconsider the request and/or make an award of compensation of up to eight weeks' pay (subject to the current cap on a week's pay of £350). The employment tribunal cannot order the employer to implement the employee's request for flexible working.

An employee can also bring a claim that the employer subjected him or her to a detriment for making a flexible working request. If the claim is successful the tribunal may award such amount as it considers just and equitable in all the circumstances. Where an employee is dismissed for making a request under the flexible working provisions he or she may bring a claim for automatically unfair dismissal. If the claim succeeds he or she will be awarded a basic award (based on age and length of service and capped at £10,500) and a compensatory award (up to £66,200). Employees do not need the normal one year's service to bring such a claim.

An employee who succeeds in a claim for sex discrimination may be awarded damages for injury to feelings and compensation, for which there is no cap, for losses flowing from the discrimination.

Next week's article will look at the positive aspects of flexible working for employers, and the challenges that it presents, and will be published on 14 April.

Jenny Wotherspoon (jenny.wotherspoon@osborneclarke.com) is an associate and Helen Dallimore (helen.dallimore@osborneclarke.com) is a senior solicitor at Osborne Clarke.

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