Flexible working – are you ready? What can we learn from case law?

You probably know that employees now have new legal rights to request flexible working. But are you fully prepared for the changes? For example, are your managers aware of how to avoid discrimination claims, and are you aware of practical implications from case law?

Every employee in the UK who has worked with their employer for at least 26 weeks continuously, now has the right to request flexible working. ‘Flexible’ means a way of working that suits an employee’s needs, for example having flexible start or finish times, working from home, job sharing or part-time working.

Previously, only parents and carers have been eligible to make this request, but now this right has been extended. Employers can turn down a request, but they must have good business reasons to do so. Reasons might include, for example, an inability to reorganise work among existing staff, a detrimental impact on quality or performance or insufficient work for the periods that the employee proposes to work. Employers have a legal duty to consider a request in a reasonable and objective manner

6 key points:

• Employees must have 26 weeks continuous employment at the date the application is made.
• Employers have statutory duty to consider applications.
• Once agreed it becomes a permanent change to the contract of employment.
• An employee has the right to appeal if necessary against the outcome.
• You should try to negotiate an agreement if requested hours are not possible.
• Only one application can be made in a 12 months period.

10 key things we can learn from case law:

1. Ignore flexible working requests at your peril

In Clayton Brown v Cumbria County Council, the employment tribunal found that an employer had failed to respond to the formal right to request flexible working by an employee who had returned from maternity leave and that she had been forced to resign because of the uncertain situation in which this left her.

2. Train line managers in handling flexible working requests

In many cases, problems with flexible working originate with line managers, who should be instructed in how to deal with requests. In Wolstencroft v Waste Recycling Group Ltd, a manager’s unhelpful mishandling of an application for flexible working meant that an employee resigned and successfully claimed constructive dismissal.

3. A refusal of a flexible working request following maternity leave can be discriminatory.

Employers must be able to justify refusing to allow a woman returning from maternity leave to move to part-time working. In the important case of British Airways Plc v Starmer, the employer’s decision to refuse an employee a request to halve her hours was found to be unjustifiable.

4. You will have a hard time justifying a “full-timers only” policy.

It will be particularly difficult for an employer to justify a blanket rule that all employees work full time. In Hardys and Hansons plc v Lax, the Court of Appeal rejected the employer’s evidence that its discriminatory action was justified by the impossibility of permitting part-time or job-share working arrangements.

5. Don’t assume men never need to work flexibly

HR professionals will be less used to dealing with flexible working requests from men, seeing as requests tend to be made by women with young children. However, an assumption that a woman’s application should always be favoured over a man’s application can be discriminatory, as Armstrong v DB Regio Tyne and Wear Ltd shows.

6. Don’t forget about employees’ other protected characteristics

With flexible working requests commonly following maternity leave, it is easy for employers to neglect the flexible working needs of employees with one of the other protected characteristics, particularly if the employee is disabled and needs adjustments to working hours. In Cooper v Magnet Ltd, the employment tribunal held that the employer’s imposition of extended working hours led to the resignation of a disabled employee.

7. Flexible working is particularly important for parents with disabled children and carers of adults

Employers should be aware that since the Equality Act 2010 came into force, legislation has provided that it is possible to commit disability discrimination against an employee who has a relative who has a disability. In Coleman v Attridge Law and another, the claimant brought a claim arguing that she had been discriminated against because she was the primary carer for her disabled son. She claimed that the employer’s discriminatory treatment included a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children. Similarly, in Price v Action-Tec Services Ltd t/a Associated Telecom Solutions, the employer was found to have committed “associative disability discrimination” against an employee who required time off because her husband was seriously ill with leukaemia.

8. You can cure flexible working procedural flaws on appeal

While an appeal stage is no longer a necessity under the new rules, Little v Richmond Pharmacology Ltd shows why it is still a good idea for employers to offer employees an appeal against refusals to accommodate their flexible working requests. If the original decision was discriminatory, this could be rectified at the appeal stage when looked at afresh, for example by a second manager.

9. Be careful about withdrawing flexible working arrangements

Employers are quite entitled to review employees’ existing flexible working arrangements, particularly if the new rules lead to a glut of requests, all of which the employer may not be able to accommodate. In Solicitors Regulation Authority v Mitchell, the employer’s failure to take a methodical approach to reviewing the claimant’s flexible working led to a successful sex discrimination claim.

10. Don’t take the new Acas code of practice on flexible working as gospel

While the Acas code of practice is important guidance (see below), employers should remember that the amended law on the right to request flexible working is contained in part 9 of the Children and Families Act 2014 and the Flexible Working Regulations 2014. As Toal and another v GB Oils Ltd showed, Acas codes of practice are useful guides, but they are not always definitive statements of the law.

Acas has said that ‘requests should be considered in the order in which they are received Having considered and approved the first request, the employer should remember that the business context has now changed and can be taken into account when considering the second request.’ However, this might not be practicable, and it might be more appropriate to take a more holistic approach to requests, rather than this ‘first come first served’ basis that Acas suggests.

To read more about these cases, click here

Practical implications:

It’s worth pointing out to employees making a request that any change to terms and conditions is likely to be permanent, and they would need to reapply at a later stage if they wanted to revert back to their previous working conditions – and there is no automatic right to revert back. So, if, after a few months, the changes are not working for an employee, they might have to wait at least 12 months before making an application, and at that point there is no guarantee that the employer will be able to accommodate the request to revert back to the original terms and conditions.

Staff should be mindful that where someone has a protected characteristic of the Equality Act 2010, other legal obligations may need to be considered. For example, if a request is made by a disabled member of staff, the requirement to provide reasonable adjustments may give additional rights to grant such a request.

If you have not already done so, it would be wise to update or develop a policy for handling flexible working requests. It can help ensure clarity and consistency to requests, and act as a framework for training managers on the changes.

You might also consider examining in advance your staffing requirements. This will help your organisation to deal with requests and justify decisions.

And finally, it is worth bearing in mind that properly managed, flexible working can be a valuable tool to encourage job satisfaction, motivation and productivity. As Susannah Clements, chief executive of the Chartered Institute of Personnel Development says:

‘Employers increasingly recognise the strong business case for flexible working, including enhanced employee engagement and the attraction and retention of a diverse workforce.’

ACAS has produced a good practice guide to help employers and employees understand the changes., including what issues should be covered in a policy

To download the guide, click here