Flexible working applications: The potential legal implications and how to handle them

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Under the Employment Rights Act 1996, employees have a right to apply for different and more flexible working hours as long as they meet certain criteria. Certain procedures must be followed by both employee and employer and those reading would be advised to familiarise themselves with these prior to undertaking any such application.

In my experience, all too often employers treat these applications mechanically. There is often an attitude that as long as the procedures are followed and one or more reasons are given (even with scant justification), that will suffice.

If a Tribunal finds that there is a breach of the flexible working application procedure or that the employer gave factually incorrect reasons for rejecting a request, a Tribunal may award compensation not exceeding a maximum of eight weeks’ pay. Many employers are aware of this and are prepared to take the hit.

However, there are potentially much more serious legal implications that have potentially more serious consequences, both to the reputation of an employer and to its pocket.

Breach of the Equality Act 2010

A refusal to grant a flexible working application or breaches of the procedure can lead to a finding of discrimination.

Direct discrimination

A woman suffers unlawful discrimination if she is treated unfavourably because: -

    • Of her pregnancy or an illness resulting from the pregnancy; or
    • She is on compulsory maternity leave; or
    • Because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to maternity leave.

An employer is often faced with a flexible working application by a woman who is about to or has just returned from maternity leave who wishes to look after her baby. A failure to engage with such an application properly, either by not following procedures and/or by refusing it on no or spurious grounds, opens up an employer to the allegation that they are being motivated by a hostility to a woman who has just returned from maternity leave. The argument would potentially run as follows: -

    • Such an employee has a statutory right to have their flexible working application considered properly and in accordance with a proper procedure;
    • You have failed to do so;
    • You have failed to give any reason or any good reason as to why;
    • Given the timing and nature of the application (i.e. in or around of the end of maternity leave and concerning childcare) it would be reasonable to infer that it is due to a hostility towards the employee given they were on maternity leave;
    • In short your attitude was ‘you have had your year off, which has caused quite enough trouble, please stop with this nonsense and get back to work’.

Indirect discrimination

This is where an employer enforces a Policy, Criterion or Practice (‘PCP’), which applies to all employees, but hits one group harder than another (referred to as putting a group at a particular disadvantage). For example, a policy that an employee, to get a job, has to be 6ft tall applies to everyone, but would put women at a particular disadvantage in getting the job as they are generally shorter than men.

If a particular disadvantage to a group is proved and it is also proved that the employee is put at a particular disadvantage, then there is discrimination unless the employer can show that they had a legitimate aim in having the PCP and that such aim was implemented in a proportionate manner (i.e. were there other ways of implementing those aims?).

Depending on the facts an employer, by dismissing one or a number of flexible working applications, might be deemed to have a PCP that flexible working applications are refused. It has been accepted by the appeal courts (albeit with increasing reservation) that this often puts women as a group at a particular disadvantage as childcare responsibilities fall disproportionately on them. If an employee could prove that they were put at a particular disadvantage by having their flexible working application refused (many can) then it would be for the employer to prove they had a legitimate aim in refusing the application, which was implemented in a proportionate manner.

Constructive dismissal

If an employee has their flexible working application refused and they resign they might be able to claim constructive unfair dismissal i.e. that their employer unfairly forced them to resign by not changing their working pattern. This would be particularly persuasive if the refusal was deemed to be an act of discrimination.

How to avoid these problems

I would recommend the following: -

  • If you are considering a Flexible Working application, do so with a genuinely open mind;
  • Make sure that you follow the procedures closely;
  • Read the application and listen to the employee carefully;
  • If you decide to refuse it make sure there are real and justifiable reasons that make sense, will withstand proper scrutiny by an Employment Tribunal and fall into the permitted categories. Do this by investigating the request properly, recording such investigations, allowing the employee to comment on the results of the investigations and recording the reasons for refusal in sufficient detail at the time;
  • If you are not minded to grant the exact flexible working application requested, consider whether there might be a middle ground. Be prepared to put forward counter proposals (although be aware that putting forward a counter-proposal could be construed as a rejection of the initial application: only do so if you do not want to grant the initial request);
  • Avoid falling into the trap of box ticking.

 Given the word limit, this article is not intended to be a comprehensive overview of the law and should not be relied upon as legal advice. It is merely to highlight some of the key aspects of this area of the law. If in doubt legal advice should be taken.