The recent Queen’s speech highlighted the Government’s intention to bring forward proposals to help people achieve a better balance between work and family life. To this end, the Government has issued a press release indicating its intention to extend the right to request to work flexibly to all parents with children aged over 6. BERR (formerly the DTI) has commissioned Sainsbury’s HR Director, Imelda Walsh to undertake an independent review into the extension of this right.
Under the current law, the right to request to work flexibly is afforded to parents of children under 6 (or 18 if disabled). There is also a similar right for carers (in effect from 6 April 2007). There is no indication of when the proposed new right for parents of older children may come into effect – presumably more detail will be known once the review which the Government has commissioned has been completed. However, will an extension of the current right to request to work flexibly make much difference? After all, many employers’ flexible working policies already extend this limited statutory right to all parents of children under 18 in any event.
Employers are now having to deal with more requests to work flexibly than ever before, and turning down such requests will inevitably lead to more grievances to manage. Despite there being no express statutory right to request flexible working for parents of children over 6, it is important that employers are aware that the law already provides certain safeguards in any event. For this reason, employers should already be taking care when considering how to deal with requests. For example, an employer who simply refuses a request from a mother to change from night to day shifts runs the risk of claims for indirect discrimination on the grounds of sex, as well as victimisation. Tribunal awards for discrimination are uncapped and so can be costly. An employer may be able to defend such a claim by showing that any such discrimination was objectively justified.
If the employer wishes to be confident of objectively justifying its decision to turn down a request, the employer should suggest alternatives to the required change, or have a trial period in which their reason for objection to the request could be validated. Most importantly, all reasons for objection and discussions with the employee should be carefully documented.
Finally, employers should be wary of requests to work flexibly to care for the disabled or even the elderly. We are currently awaiting a decision of the European Court of Justice in the case of Coleman v Attridge Law (expected during 2008) which will decide whether European law outlaws “discrimination by association” in relation to disability discrimination. This case could ultimately also have implications for age discrimination laws, as UK law does not currently provide for protection against discrimination by association on the grounds of age. Claims against employers for discrimination by association should therefore be seen as a possible risk, and any employer receiving a request by an employee to work flexibly to care for a disabled or elderly person should seek advice.