Flexible Working - Avoiding The Pitfalls Associated With Requests

Since 2003, parents of children aged under 6 (or, if disabled, under 18) have had the right to make a request to their employer to work flexibly. In April 2007, the right to request was extended to carers of adults. The right only applies to "employees" who have 26 weeks' continuous employment and who :
(a)     Have a specified relationship (parent, adopter, guardian, foster parent, or married to, the civil partner of, or partner, of the employee) with a child aged under six (or a disabled child aged under 18); or
(b)     Have a specified relationship (married to, the civil partner of, or partner of, or a "relative" of, or living at same address as, the employee) with a person aged 18 or over who is in need of care.  "Relative" means mother, father, adopter, guardian, son, daughter, brother, sister, aunt, uncle or grandparent, in laws and step relatives.

An eligible employee may apply for a change in their hours of work, times of work, or place of work, for the specific purpose of caring for a child or a person aged 18 or over who is in need of care. The employee does not have to provide any evidence of the care being provided.  For young children, this is likely to be obvious.  However, the care required by an adult may not be so clear.  DBERR guidance on this issue suggests that "care" may, amongst other things, include help with personal care and mobility, nursing and practical household tasks.

The employer is under a duty to consider the request and must normally hold a meeting with the employee to discuss it.  However, the employer does not have to grant the request provided that it can give one of the statutory reasons for its refusal, namely :

• Burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to re-organise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work; or
• Planned structural changes.

To date, it is estimated that about 90% of flexible working requests have been granted by employers and, consequently there has been little case law.  The only reported case is Commotion Ltd v Rutty, in which  the EAT upheld the employment tribunal's decision that the tribunal is entitled to look at the ground which the employer asserts is the reason why he has not granted the application and to see whether it is factually correct. Whether requests by employees with caring responsibilities will prove a more controversial issue  than requests by parents, giving rise to more case law, remains to be seen.  

However, even if an employer complies with the flexible working regulations, they may still find themselves being challenged if they refuse to agree a request, as British Airways found out to its detriment in 2005. In Starmer v British Airways a pilot brought a claim for indirect sex discrimination after BA refused her request to work part-time, 50% of full time. She was told by that she could work a minimum of 75% of full time. The EAT upheld the tribunal's decision that BA had discriminated against Ms Starmer on grounds of sex. The requirement to work 75% was a provision, criterion or practice which was to her detriment : it would apply equally to a man but was such that it would be to the detriment of a considerably larger proportion of women than of men. BA could not establish that it was justifiable.

In some cases, a refusal to allow flexible working may give rise to a claim for direct sex discrimination. In Walkingshaw v The John Martin Group,[Edinburgh ET Case No.
S/401126/00], Mr Walkingshaw made a request to his employer to work part-time in order to spend more time with his son. His request was rejected by his employer on the grounds that it was too complicated and he resigned. The tribunal found as a fact that the employer had always granted requests from female employees for reduced hours for family reasons, though they were employed in a different department to Mr Walkingshaw. Quite apart from those actual comparators, Mr Walkingshaw was entitled to compare his treatment with how a hypothetical female comparator in the same post as he held, and performing the same tasks, would have been treated.  Employers therefore need to ensure that they give requests from both men and women equal consideration where the effect of granting the request would result in a similar impact to the business. 

The extension of the right to request flexible working to carers of adults may also give rise to the possibility of age discrimination claims if requests are refused. In the past, employees taking advantage of the right to request flexible working have mainly been relatively young, being parents of small children. Carers, on the other hand, may well fall into a different demographic.

A recent case which has been referred to the European Court of Justice also raises the possibility of disability discrimination claims arising out of flexible working requests. In Coleman v Attridge Law, Mrs Coleman brought a claim for disability discrimination when her request for flexible working was turned down by her employer. Mrs Coleman wanted to work flexibly in order to care for her son, who was disabled. She claimed that other parents of non-disabled children had had their flexible working requests approved, and that she was being discriminated against by association with her son's disability. The Disability Discrimination Act does not seem to permit claims for discrimination by association, so the tribunal has referred the question of whether the Equal Treatment Directive requires such discrimination to be prohibited to the ECJ. If Mrs Coleman's claim is successful, this may be another route for carers to challenge refusals of flexible working requests.
Where employees are granted flexible working arrangements, employers need to ensure that they are not treated less favourably as a result, otherwise they risk claims under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations.

Flexible Working - Avoiding The Pitfalls Associated With Requests   (cont/d)
So, what can employers do to avoid the pitfalls associated with flexible working requests?

• Have a procedure in place for dealing with flexible working requests and ensure that managers are trained in operating the procedure.
• Be critical of any reasons given for rejecting a request and in particular be wary of turning down requests on the basis of cost alone.
• Consider whether to implement a trial period - although not provided for under the legislation, it may be possible to agree an extension to the time limit for making a final decision in order to accommodate a trial period.
• Before turning down a request, consider whether there are any discriminatory implications.

For further information, guidance and advice on this topic, please contact Jonathan Hearn - tel: 0207 796 6637; mob: 07968 558 759; email: jonathan.hearn@dlapiper.com