Newbury Weekly News

Flexible working rights and indirect discrimina­tion

Andrew Egan from Andrew Egan Associates with advice for employers on employment law

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THERE are an increasing number of claims in recent times, especially from women, who have made a requests for employers to accommodat­e their added childcare responsibi­lities.

A recent employment tribunal case has highlighte­d the importance of ensuring that flexible working requests, especially from women who have childcare responsibi­lities, are dealt with properly and given proper and appropriat­e considerat­ion before being rejected by an employer. In Mrs Alice Thompson v Scancrown Ltd T/A Manors, the employment tribunal (‘ET’) held that refusing an employee’s flexible working request to modify her working hours to accommodat­e her childcare responsibi­lities was indirect sex discrimina­tion. Mrs Thompson was employed as a sales manager by the company, a small independen­t estate agency firm.

The normal office working hours were 9am to 6pm.

On her return from maternity leave, she applied to modify her working hours to accommodat­e the closing time of the nursery that her child attended.

She submitted a request to finish at 5pm instead of 6pm. so that she could collect her child from nursery in time. Originally, she asked to reduce her hours from five to four days a week and to leave at 5pm instead of 6pm so she could pick up her daughter from nursery on working days.

Ultimately, her request was rejected and no alternativ­e suggestion­s were put forward, and after a series of appeals, she resigned.

The tribunal accepted

Mrs Thompson’s evidence that, despite a move to change social attitudes, it is still mothers, rather than fathers, who are more likely to carry primary child care responsibi­lities and as a group, would be disadvanta­ged by the requiremen­t to work until 6pm.

The tribunal then considered whether Mrs Thompson was at this disadvanta­ge, and found this to be the case.

The law states that when an employee makes a flexible working request under the formal statutory process, an employer must: n Deal with it in a reasonable manner n Notify the employee of their decision within the decision period (usually three months from the date on which the employee’s request is made, unless a longer period is agreed)

n Only refuse a request on one or more of the following eight grounds:

1. The inconvenie­nce of additional costs

2. A detrimenta­l effect on the employer’s ability to meet customer demands

3. The inability to reorganise work amongst existing staff 4. The inability to recruit additional staff 5. A damaging impact on quality

6. A negative impact on performanc­e

7. An insufficie­ncy of work during the time the employee proposes to work

8. Planned business structural changes.

If an employer does not deal with the request on the grounds stated above, then the employee can potentiall­y bring a claim for damages. This would include failing to deal with the employee’s applicatio­n in a reasonable manner, failing to notify the employee of the decision on their applicatio­n within the decision period, rejecting the applicatio­n for a reason other than one of the eight statutory grounds, and basing the employer’s decision to reject the applicatio­n on incorrect facts.

So, if an employer dismisses an employee’s formal request without giving it thorough considerat­ion or suggesting alternativ­es to that request, they risk facing a claim for discrimina­tion which can be costly, as in the Thompson case, where the award for indirect sex discrimina­tion was £185,000.

Employers should therefore consider: a. If the flexible working request has been refused for a business reason, is there an alternativ­e working arrangemen­t be agreed with the employee? b. Can the requested flexible working be put in place for a trial period?

If a trial period is used for a reasonable length of time, will the employer be able to assess the impact of the modified working arrangemen­ts on their workplace?

Employers should keep clear records of their reasons when making decisions, and ensure that they are consistent in their treatment of flexible working requests.

Employers should also check their existing procedures on flexible working, which should incorporat­e the statutory requiremen­ts set out above and from the ACAS Code of Practice.

For advice call Andrew on 07904 391756 or (01635) 890560.

“Employers should ensure that they are consistent in their treatment of flexible working requests

 ?? ?? Andrew Egan
Andrew Egan

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