Flexible working legislation was introduced in 2003 and since then almost a quarter of all eligible parents have made requests under the legislation. The legislation has been perceived by employers and employees alike as a resounding success with surveys showing that it has had a positive impact on employee retention, motivation and recruitment. To date, there has been relatively little case law, with such cases as have been reported tending to focus on the grounds for refusal of the request. Given that the compensation available for breach of the legislation is capped at just under £2,500, it is unsurprising that there are not more employees bringing claims for breach of the right to request. Instead, employers who refuse requests, or who fail to adequately justify their refusal of a request, typically face claims for unlimited compensation under the Sex Discrimination Act 1975. Little wonder then that employers have sat up and taken notice of their flexible working obligations.
Since April of this year, the right to request flexible working has been extended from parents with children under the age of six, and disabled children under the age of 18, to include adult carers. However, in the absence of any obvious discrimination law to underpin the extension in the law, it is far from clear whether it will be as much of a success as the original legislation appears to have been.
A brief reminder
The right to request flexible working was introduced under the Employment Act 2002. To recap briefly:
- What is the right? The right is to request flexible working only. It is not a right to be allowed to work flexibly.
- Who qualifies? An employee who is the mother, father, adopter, guardian or foster parent (or their spouse/partner) of children under six years or disabled children under 18 years, provided he/she has at least 26 weeks’ continuous service on the date of the application and expects to have responsibility for the child’s upbringing. Since April 2007, this has been extended to include an employee who is, or expects to be, caring for a person aged 18 or over who is in need of care provided he/she has at least 26 weeks’ continuous service on the date of the application and the person requiring care is married to, or the civil partner or partner of the employee; or a relative of the employee; or lives at the same address as the employee.
- Scope of request: Changes can be requested to the employee’s hours of work, time of work or place of work. If agreed, the change is permanent.
- Procedure for applying: Employees must submit a written request setting out, among other things, the changes requested, identifying any effect they might have on the employer’s business and suggesting how such an effect could be mitigated. If the employer does not agree to the request, a procedure must be followed which involves a meeting and the option of an appeal if refused at first instance.
- Grounds for refusing a request: An employer must specify one or more of the prescribed grounds as the reason for refusing a request, such as the inability to reorganise work among existing staff or to recruit additional staff, the detrimental impact on quality or performance, or the burden of additional costs.
- Remedies: An employee can complain to the employment tribunal, but only regarding the employer’s failure to follow the procedure — the tribunal cannot look at the commercial validity of the employer’s decision except where it was based on incorrect facts. The tribunal may order the employer to reconsider the application and may also make an award of compensation to the employee. The level of compensation will be what the tribunal considers ‘just and equitable’ in the circumstances, subject to a maximum of eight weeks’ pay (currently capped at £310 per week — a £2480 limit).
Indirect discrimination
Given the restriction on compensation, coupled with the absence of any obligation on employers to justify the refusal, the initial reaction to the legislation was that it amounted to little more than window dressing, without any substantive impact on employers. However, this view failed to take account of the underlying indirect discrimination issues associated with a refusal of a flexible working request. Where an employer refuses a flexible working request, it risks not only a claim against it for breach of the statutory obligation, but also for indirect sex discrimination.
Indirect sex discrimination is concerned with practices that have the effect of discriminating against one sex
and which cannot be justified by the requirements of the job. By refusing to allow an employee a flexible working pattern, the employer is imposing a requirement that the employee work full-time hours. This is a requirement that more men than women will be able to comply with, given that women generally have primary responsibility for childcare. While flexible working legislation allows the employer to legitimately refuse to grant a request on any one of the prescribed grounds, under the Sex Discrimination Act 1975, the tribunal will scrutinise the employer’s reason for the refusal and decide whether or not the employer was objectively justified in refusing the request.
By way of example of the power of flexible working legislation, British Airways (BA) has recently withdrawn an application to the Court of Appeal and settled a claim brought against it by Jessica Starmer, an airline pilot who contested the requirement that she must work 75% of full-time hours. Although BA had insisted that in reducing her working hours by 50%, Starmer would pose a health and safety risk, both the Employment Tribunal and the Employment Appeal Tribunal considered the refusal to allow her to work the requested flexible working pattern to be sex discrimination. However, this line of case law will be of limited assistance for adult carers whose requests to work flexibly are refused.
Extension for adult carers
The extended right was introduced by the Work and Families Act 2006. Its aim is to extend the right to request flexible working to employees of all categories (providing they have 26 weeks’ continuous service) where the purpose of the request is to enable the carer to care for an adult so long as the employee satisfies the prescribed relationship criteria. Employers should be revising their flexible working practices. The Department of Trade and Industry (DTI) has issued guidance as to the sorts of activities it anticipates care‑givers are likely to be involved with. These include help with personal care, mobility, administering medicine and other nursing tasks; help with transport, housework and financial matters; keeping the dependant company and providing emotional support.
There is some evidence that adult carers fall into certain categories. For instance, certain ethnic groups have very family-orientated caring practices; middle-aged workers may have responsibility for caring for elderly parents. It is possible, therefore, that certain employees whose requests for flexible working have been rejected may seek to bring claims of discrimination on grounds such as age, race or religion. However, the evidence that a refusal to allow flexible working patterns has a disproportionate impact on these types of groups will be significantly less compelling than its impact on child carers and consequently, any such claims will be significantly weaker.
The extension of the right will be welcomed by many employees who until now have sought to juggle the competing demands of work and caring for dependants. However, faced with an employer who is already feeling overburdened by family friendly rights, they may be disappointed. The DTI suggests that flexible working patterns raise staff morale, decrease absenteeism and improve staff retention rates. However, without any threat of a discrimination claim to leverage an application brought under the extended rights, carers could find that their applications to work flexibly do not have an equal footing with applications made by parents.
In order to avoid compromising working practices further, employers could be tempted to simply reject applications made by carers by citing business reasons. In addition, calls earlier this year by the Children’s Minister, Beverley Hughes, to extend flexible working rights to all employees will have done little to reassure employers that the scope of flexible working remains limited. If Hughes has her way, flexible working could soon become a workforce‑wide phenomena and this prospect may encourage employers to turn away requests before the floodgates open.
That said, flexible working is not a new concept for employers. For most, the right-to-request mechanism is well established and certain employers have devised effective systems for dealing with flexible working, such as job share arrangements. Research shows that many employers already offer flexible working arrangements well beyond the statutory minimum. Having accepted their duties in relation to parents, employers may be reluctant to refuse carers an equal opportunity to work flexibly and, against the current climate of high-profile, high-value discrimination claims, equality of treatment among employees should, by now, be uppermost in the minds of all employers.
Louise Mason is an associate in the employment group at Lovells.