The pitfalls of the work-life balancing act
A knee-jerk rejection to a request to work flexibly will undoubtedly lead you to the law courts. By David Gibson, associate partner, Crutes Law Firm.
The new buzzword giving HR practitioners a headache is 'fambition', which, stripped to its core, equates to dads wanting to spend more time at home with the children and less time at the office. But in seeking to reach this goal, men are now starting to exercise their statutory right to request flexible working as laid down in the Employment Rights Act 1996 and supporting regulations.
Rejection rates
Since the right to request flexible working was introduced, 10% of male employees have approached their employers about changing hours, according to a recent TUC report, Out of Time. However, UK managers have looked more favourably on female members of staff, with only 10% of working mothers having their requests rejected out of hand compared to 14% of men.
The range of family rights open to men is limited. Paternity leave is two weeks and must be taken in blocks. Also, it only attracts pay at the rate of 106 per week or 90% of average weekly earnings, whichever is the lower amount. Provisions in the forthcoming Work and Families Bill may slightly improve the situation, however, enabling fathers to take up to 26 weeks' additional paternity leave (some of which could be paid) if the mother returns to work.
But it is the flexible working legislation that provides fathers with the best opportunity to become involved in family life. The legislation enables fathers with a child under six (or under 18 if the child is disabled) to make a request for flexible working, as long as they have worked for their employer continuously for 26 weeks at the time the application is made.
There is a strict procedure you must follow when considering an application. Failure to do so can lead to a tribunal or the arbitration service Acas awarding compensation (a maximum of eight weeks' pay capped at the statutory limit of 290 per week) and insisting the application be reconsidered.
Flexible equality
More importantly, failure to agree to a request for flexible working, where a similar request has been granted to a female member of staff, may expose your organisation to a claim for sex discrimination - with uncapped compensation and tribunals having the power to make awards for injury to feelings.
In extreme circumstances, depending on the way a request for flexible working is dealt with, it could place a male employee in a position to bring a claim for constructive unfair dismissal.
Obviously, not all employers will be in a position to accommodate flexible working patterns. But if you reject a request, you must be able to justify it by establishing a business reason for rejection, with a clear explanation as to why the decision was reached.
Justification for rejecting a request may include:
- the burden of extra costs
- a detrimental effect on the organisation's ability to meet customer demands
- the inability to reorganise work among existing staff
- the inability to recruit additional staff
- a detrimental impact on quality/performance
- insufficiency of work during the period the employee proposes to work
- planned structural changes.
But do not use any of the above as a convenient tag to evade your responsibilities.
More men are asking if they can work flexibly. To ensure these individuals are not lost, employers will have to think more laterally about reallocating roles and responsibilities.
Key points
- Paternity rights are due to be extended under the provisions of the Work and Families Bill in 2007.
- Employers have a duty to deal with all requests for flexible working.
- Requests for flexible working can be rejected on certain business grounds.
- To defend any claims, employers should document their procedures and clearly explain why a request has been turned down.
- Employers will be required to think more innovatively on how they structure their workforce - develop a policy on flexible working and review this regularly.
