Flexible Working

The right to request flexible working was introduced by the Employment Act 2002. This legislation did not create a right to work part time, but merely provided a statutory framework through which a request from an eligible employee to work flexibly, must properly be considered by the employer. If the request is not dealt with properly by the employer, then it could give rise to a claim for direct or indirect discrimination.

Who can make a request?

A request for flexible working may be made by an individual who
• is an employee
• has 26 weeks continuous service
• has not made a request to work flexibly in the previous 12 months.

If you meet the above criteria then you are able to submit a statutory request to work flexibly.

Examples of flexible working
• changing the hours you work
• changing the times when you work
• working from a different location
• home working
• flexi-time
• job sharing

There are few limits as to what an employee can request as a variation.

There is a set procedure with various time limits that must be adhered to consider the flexible working request.
In brief, following a request
• a meeting must be held and within fourteen days of that meeting
• the employer must write to the employee to either agree the new work pattern or
• provide grounds for rejection and also set out the relevant appeal procedures.

If agreement is reached and a request is granted, then both parties must be entirely clear as to the scope of the new work pattern and a new contract should be issued by the employer to the employee, setting out the terms of this.

An employer is entitled to reject the request but this has to be for specific reasons detailed in the relevant legislation. The normal most common reason is to reject the request on specified business grounds namely:
• the burden of additional costs,
• detrimental affect on ability to meet customer demand
• inability to re-organise work among existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• an insufficiency of work during the periods the employee proposes to work
• planned structural changes.

The notice of refusal must state upon which of those grounds the employer relies on and the details of the appeal procedure must be specified by the employer. If after the appeal procedure the employer still has not changed their decision, then the employee does have the right to bring a claim to the Employment Tribunal, but on limited grounds, namely:
• the procedure was not followed
• the request has been rejected for a reason other than permitted by the
  prescribed reasons
• the decision to reject was based on incorrect facts.

The Tribunal’s powers are limited though, to order that the employer re-consider the application and it may also award compensation not exceeding 8 weeks pay (maximum £450.00 per week). However, it cannot force the employer to accept the flexible working request.

This may prove the most effective remedy for those employees whose requests have been rejected.

Direct Discrimination
This occurs where there is less favourable treatment given to an employee on the grounds of sex, race, beliefs or disability. Some employers may tend to look more favourably on flexible working requests from women than those made by men and this therefore may mean that employers could face claims of direct discrimination from men whose requests have been refused.

Indirect Discrimination
This occurs when the employer has applied to an employee a provision, criteria or practice which
•  applies or would apply equally to everyone but which puts one group at
   a particular disadvantage to the other
•  which puts the particular employee to that disadvantage and which the
   employer cannot show is justified.
Therefore it is imperative for employers to follow a correct procedure and ensure that they have given correct thought to any request for flexible working, otherwise they may face discrimination claims.

If you are considering making a request for flexible working or are an employee who has received a request for flexible working from an employee and require advice, then do not hesitate to contact Katie Kearns at Sarginsons Law on 024 7655 3181 or email: kkearns@s-law.co.uk