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Employment Law Services Ltd

Flexible Working

As access to communication and technology has become easier, so the ways, means and patterns of working have become increasingly diverse. In turn this has allowed groups within society to join the work force where previously they have been faced with obstacles to working. Job sharing, the increase in part time work, flexible working hours and home working are now quite common. These forms of work have allowed disadvantaged groups to join the workforce, such as disabled people and carers.

Indicators show that the ability to work outside traditional full time or “nine to five” structures will increase as technology advances further. This should also help meet increasing demands from customers to provide services when they want them. Flexible working arrangements also appear to assist workers achieve a healthier work-life balance.

Since the 30th June 2014 most employees have been able to request flexible working arrangements. In order to be entitled the individual must be an employee (so this does not cover agency staff used by an employer), who has been employed by the same employer for at least a period of 6 months before making the request. The individual can only make one request in any 12 month period, and the request must be in writing (includes e-mails). The employer must cmplete the process of considering and deciding on the request in a reasonable manner and within 3 months.

Flexible working requests can include changes to hours of work, changes in shifts or shift patterns, compressed hours, etc.
 
The rules prior to the 30th June 2014 were different, restricting the categories of employees that could make requests for flexible working. Initially these only applied to employees that were either the mother, father, guardian or parent of the mother, father, or guardian of a child under 6 years old. The group of employees that could apply for flexible working arrangements was then extended to include foster parents, and carers- such as the carer of an elderly parent. The old restrictions still apply to those that made a request before the 30th June 2014.

On receiving a request for flexible working arrangements an employer must meet the employee to discuss that proposal. The employee should have the right to an internal appeal if the proposal is initially rejected. An employer may reject the proposal on set grounds. The grounds for rejecting a request for flexible working have not changed with the extension of the rights to most employees. The old procedures were quite strict, and if the employer failed to carry out the correct procedure in dealing with the request the employee could choose to pursue a claim in an employment tribunal, where the employer could be ordered to pay up to 8 weeks pay in compensation and to reconsider the request.

In any event any request must be taken seriously, judged on its own merits, and handled carefully in compliance with the correct procedures, and within the set timescale. 

The changes introduced in June 2014 have resulted in a significant increase in the number of people that have the right to make such a request. However, it must be emphasised that this will still be a right to request flexible working arrangements, not to insist on them being implemented.

Flexible Working and Indirect Sex Discrimination

It is essential that employers and individuals understand the significant differences between the rights to flexible working under the Flexible Working regulations, and those under the general rights provided by the Sex Discrimination Act 1975 (now see the Equality Act which covers these issues).

Many employers in particular have come to believe that if they deal with a request for flexible working correctly under the Flexible Working Regulations, and reject the proposal on one or more of the grounds specified by the Regulations, and followed the procedure given in the regulations that they will be safe from any legal challenge to their decision. This would be to fall in the trap of ignoring the much greater legal protection provided to staff by the Sex Discrimination Act/ Equality Act.

A refusal to accept a proposal of flexible working from aworker that is a mother, or even from any married person (or person in a civil partnership) with a child or children (of ANY age) may amount to Indirect Discrimination.

There are NO prescribed grounds for refusing an application under the Sex Discrimination Act/ Equality Act. So any rejection of such a request has to be sustainable on Objective grounds.

In these cases there is no limit on compensation that the individual can be awarded by an Employment Tribunal if their claim succeeds. Any Compensation would include an amount for Injury to Feelings. There is NO set procedure that the individual has to follow in order to raise the request for flexible working arrangements under the Sex Discrimination Act/Equaltiy Act, nor is there any limit on the number of times that individual can make such an application.

Therefore, when considering making, or examining, a request for flexible working arrangements, the impact of the Sex Discrimination Act/Equality Act should be considered, not just the Flexible Working Regulations!

 

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