Currently, those with caring responsibilities for children aged 16 or under, or for dependent adults, have the right (once a year) to request flexible working from their employer. Typically these requests are for reduced working hours, but they can be for other types of flexible working, such as flexitime or working from home. However, the right in the UK is only to request flexible working hours. There is no right to have a request granted.
At the end of June 2014 the right to request is being extended to all employees with 26 weeks' service, regardless of why they want to work flexibly. In addition, as part of a trend to remove "red tape", the statutory procedure under which employers are obliged to consider requests within strict time limits is being replaced with a duty to deal with requests in a reasonable manner and within a reasonable time, underpinned by a statutory code of practice from ACAS (the conciliation service) on the meaning of "reasonable".
Going forward, employers will have to deal with both flexible working requests and appeals within three months from receipt; including arranging a meeting with the employee (allowing the employee to be accompanied by a work colleague). The ACAS code tells employers they must weigh the benefits (for both employee and employer) of the request against any "adverse business impact", rather than against just the cost of implementing the changes.
Despite the removal of the formal procedure for dealing with requests, it will still be the case, as before, that the request can only be rejected if the employer considers that one of the business reasons set out in the legislation applies:
- additional costs
- inability to reorganise work or recruit additional staff
- detrimental impact on quality or performance or ability to meet customer demand
- insufficient work in the periods the employee proposes to work
- planned structural changes to the business.
As long as an employer follows this slimmed down procedure for considering a request, a refusal cannot be challenged under the flexible working regulations. A claim could be brought in an employment tribunal if a request was refused for a reason other than one of the listed grounds but compensation for such a claim is currently capped at £3,712.
The more significant risk of rejecting a flexible working request – whether or not made under the formal procedure – is that the employee might be able to resign and claim unfair constructive dismissal and, depending on the type of request that has been made, a refusal could be challenged as indirect discrimination, in which case an employer might have to justify its decision on objective business grounds. Traditionally, these have been indirect sex discrimination claims but now that requests will not be limited to parents and carers, there may well be more requests from older employees – those approaching retirement, for example, or looking after grandchildren – so the possibility of age discrimination claims being made if requests are rejected should not be ruled out.
Compensation for constructive unfair dismissal is now capped at the lower of £76,574 or 52 weeks' gross pay but compensation for a discrimination claim is uncapped, making an indirect discrimination claim the principal risk.
The Solicitors Regulation Authority v Mitchell, a case in the Employment Appeal Tribunal earlier this year, illustrates the potentially challenging issues for employers faced with multiple flexible working requests from employees with differing personal circumstances.
The claimant had, on her return from maternity leave, agreed with her employers that she could work from home two days each week to facilitate child care arrangements. A male colleague in the department, who had a son with health problems, worked similar flexible hours. Some years later, the claimant asked to change the arrangements to cater for a new school run. At this point the employers withdrew their consent to her working from home, although she was offered the opportunity of more flexible working hours. The working arrangements of the male colleague were not changed.
The employers' explanation for the claimant’s apparently less favourable treatment (primarily operational reasons) was rejected and the EAT upheld the unlawful sex discrimination claim. As this was a direct discrimination claim, there was no opportunity for the employers to attempt to justify it.