Try to be flexible about flexible working

An employer struggling in this present economic climate might be relieved when an employee makes a request to work part-time thereby reducing the employer’s overheads.  However, not all businesses embrace flexible working.  Employers should nevertheless think twice before refusing a request to work flexibly.

Take the following example:

John is a senior accountant at a big accounting firm in London.  He has been with the firm for a number of years.  John’s wife, Jane, who is a corporate partner in a law firm, has recently had a baby boy, Jack.  Due to the nature of Jane’s job, John and Jane have decided that it would be best for John to work part-time to look after their son.  Following Jane’s maternity leave, John therefore makes a request to his firm to work part-time to care for Jack.  Does John have a right to request flexible working?  If his firm do not want one of their male senior accountants to work part-time can they simply refuse his request?

The statutory right to request flexible working now extends to:

  •  an employee who wants to work flexibly to care for a child who is under 17 years old (or 18 years old if the child is disabled) and who is either the child’s mother, father, adoptive parent, guardian or foster parent or the spouse, civil partner or partner of the child’s mother, father, adopter, guardian or foster parent; and
  •  an employee who wants to work flexibly to care for an adult who is aged 18 and over who is in need of care and who is married to, or the civil partner or partner of the employee, a relative of the employee or who lives at the same address as the employee.

 

Employees must also have 26 weeks’ continuous service at the date the request is made and must not have made a request to work flexibly during the preceding 12 months.  Unless John has made such a request in the previous 12 months, he will therefore be eligible to make a request for flexible working.

However, while John’s firm must follow the statutory request procedure, they need only consider John’s request properly and may refuse the request on one of the grounds set out in the flexible working legislation which are as follows:

  • The 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.
  • Planned structural changes.

 

However, while the firm can refuse John’s request on one of the above grounds, that will not prevent John from claiming sex discrimination.  John will be able claim direct discrimination if women in his company are regularly allowed to work part-time.  Similarly, were the request being made by his wife and she was refused, she would be able to claim indirect sex discrimination if she could show that the requirement to work full-time has a proportionally greater detrimental affect on women than on men and that such a requirement is not objectively justified.

Therefore the firm and employers generally do need to consider beyond the business grounds set out in the flexible working legislation to avoid costly claims of sex discrimination.  Furthermore, it would be unwise for the employer to simply cite “additional costs burden” or “detrimental impact on quality” without actually going into the detail of what the impact will actually be and whether there are alternatives which may work for both the employee and the business.  

If you are an employee seeking to make a flexible working request, you need to consider carefully what your employer’s objections are likely to be so that you can consider possible solutions to the problems envisaged.  Similarly, if you are the employer, it is useful to approach any request with as open a mind as possible as it may be that a new way of working could actually be beneficial to the business overall.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

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