Flexible working: case study

A 'relative' for these purposes is defined as a mother, father, adopter, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step relatives, half-blood relatives and adoptive relationships are also included.

Provided that Mrs Shaw has not made a flexible working application in the previous 12 months, she is eligible to request flexible working.

The only information that Mrs Shaw has provided in her letter to Mr Croft is that she would like to change her working hours. She does not provide any further information or any details as to why she is seeking the change.

Has she provided enough information for her flexible working request to be valid?

In order for her request to be valid, it must:

Mrs Shaw's letter does not comply with these conditions and is therefore not a valid request. For example, she has not:

If Mrs Shaw does not provide all the necessary information, she may be unable to bring a claim if she subsequently alleges that Satellite Limited has breached the flexible working legislation.

Satellite Limited should not, however, ignore Mrs Shaw's request even though it is incomplete. It should ask her to provide the relevant information to enable it to consider her request and should inform her that it is under no obligation to consider her application until it is complete.

Satellite Limited should be aware that Mrs Shaw may be able to submit another request. While the Employment Rights Act 1996, section 80F provides that employees cannot submit another application within 12 months of a request, this applies only to valid requests; as Mrs Shaw's request is not valid, she would simply be able to resubmit it.

Once Mrs Shaw has provided Satellite Limited with the necessary information, how should it deal with her request?

Satellite Limited is under a legal obligation to consider Mrs Shaw's flexible working request and to hold a meeting with her within 28 days of the date of her application. Mr Croft cannot simply write to her rejecting her request; if he does there is a risk that she will bring a claim.

If Satellite Limited is unable to arrange a meeting within 28 days, it should seek Mrs Shaw's agreement to extend the time limit. If it fails to do this, it will be in breach of the flexible working procedure. Satellite Limited must confirm any extension in writing to Mrs Shaw, specifying the date on which the extension will end.

Satellite Limited should arrange a suitable time and place for the meeting to discuss Mrs Shaw's requested working pattern in depth and to consider how it might be accommodated. Satellite Limited should approach the meeting with an open mind and be prepared to consider alternatives.

Within 14 days of the meeting, Satellite Limited must write to Mrs Shaw either accepting her request and establishing a start date on which the change is to take effect or rejecting her application and providing a business ground and an explanation as to why it is relevant in the circumstances, together with details of the appeal process. (The business ground must be one of those stated in the Employment Rights Act 1996 - see below.)

Mrs Shaw will have 14 days to appeal Satellite Limited's decision. Her appeal must be in writing, be dated and set out the grounds of her appeal.

If Mrs Shaw appeals the decision, Satellite Limited must arrange an appeal meeting within 14 days of receiving Mrs Shaw's appeal letter. It must notify her in writing of the outcome of the appeal within 14 days of the appeal meeting.

Mrs Shaw has the right to be accompanied by a fellow employee at the meeting to discuss her application and at any appeal meeting.

Can Satellite Limited ask Mrs Shaw to provide proof that she is a carer?

Employees are not required to provide evidence of their caring responsibilities. They are simply required to explain how they satisfy the requirements relating to the relationship they have with the care recipient.

The Government does not define 'carer' in the flexible working legislation, but it does define the relationship between the carer and the person for whom he or she cares (see above).

Guidance from the Government on the right to request flexible working - Flexible Working: the right to request and the duty to consider - stresses that patterns of care-giving vary considerably from case to case, both in the nature and the extent of the care given. It gives examples of the sort of activities that carers may be undertaking.

What action can Satellite Limited take to verify Mrs Shaw's caring responsibilities?

As outlined above, Mrs Shaw does not have to provide evidence of her caring responsibilities to be eligible to request flexible working. She is simply required to explain in her application how she satisfies the requirements relating to her relationship with the adult for whom she cares.

In practice, it is difficult to verify whether or not an employee is telling the truth. If Satellite Limited has hard evidence that Mrs Shaw is lying about her caring responsibilities, it could take disciplinary action. Satellite Limited should make it clear in its flexible working policy and procedure that, if an employee is dishonest and/or misleads the employer, it may result in disciplinary action.

Would it be sufficient for Mr Croft to reject Mrs Shaw's request for 'business reasons'?

No. In order to comply with the flexible working legislation, Satellite Limited must specifically state which of the eight business reasons set out in the Employment Rights Act 1996, section 80G(1)(b) it is relying on in turning down Mrs Shaw's request. The eight reasons are:

There is no rule as to how much information employers need to provide when turning down a flexible working request. The Flexible Working (Procedural Requirements) Regulations 2002 state that, where an employee's application is refused, the employer should state which of the eight grounds for refusal set out above apply and provide a sufficient explanation as to why those grounds apply in relation to the application.

The Government guidance Flexible Working: the right to request and the duty to consider suggests that employers should avoid unfamiliar jargon and include relevant and accurate facts. It also suggests that an explanation of around two paragraphs will usually be sufficient, although this will depend on the individual case.

Can Satellite Limited agree to the new arrangements on a trial basis?

The flexible working legislation neither requires nor prevents the employer and the employee agreeing to a new working pattern on a trial basis.

If Satellite Limited and Mrs Shaw agree to a trial period, the basis of the trial should be recorded in writing, as it could be coupled with an agreed extension of time to respond to Mrs Shaw's request or a withdrawal of her request.

Satellite Limited should hold a meeting with Mrs Shaw at the end of the trial period to discuss the trial and whether or not to make the arrangement permanent. An advantage of a trial period is that, if Satellite Limited subsequently turns down Mrs Shaw's request, it is likely to have clearer justification.

If Satellite Limited agrees to reduce Mrs Shaw's working hours, can it reduce her pay accordingly?

Yes. The flexible working rights do not entitle employees to full-time pay for working fewer hours; employees are entitled to be paid only for the hours that they work.

If Mrs Shaw later wishes to revert to her original terms and conditions of employment, can she do so?

If Satellite Limited accepts Mrs Shaw's application to change her working hours, this will, unless agreed otherwise, constitute a permanent change to her terms and conditions of employment. Mrs Shaw therefore has no right to revert to her original terms and conditions without Satellite Limited's agreement. Equally, Satellite Limited has no right to impose any changes to her terms and conditions of employment. There is, however, nothing to stop Satellite Limited and Mrs Shaw agreeing to a change in the future.

Under the Employment Rights Act 1996, section 80F, employees have the right to make only one application in any 12-month period. Therefore, if Mrs Shaw makes a second request within 12 months, Satellite Limited is not required to consider it. If, however, she makes a second request after 12 months (assuming that she meets all the other criteria for making a request), Satellite Limited must consider her application.

If Satellite Limited turns down Mrs Shaw's request and her appeal and she is unhappy about this, can she raise a grievance under Satellite Limited's grievance procedure?

There is nothing to stop Mrs Shaw raising a grievance under Satellite Limited's grievance procedure.

She would not be required to raise a grievance under the statutory grievance procedure in order to bring a claim under the Employment Rights Act 1996, section 80H (ie that Satellite Limited has failed in its duties to consider her request) as the statutory procedure does not apply to such a claim. However, if Mrs Shaw wanted to claim that she had suffered a detriment for exercising her right to request flexible working, she would be required to raise a grievance under the statutory grievance procedure.

It should be noted that in Commotion Ltd v Rutty [2006] IRLR 171 EAT the Employment Appeal Tribunal held that Mrs Rutty's request for flexible working under the statutory procedure (after her informal request had been rejected) amounted to a grievance within the meaning of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

What claims could Mrs Shaw bring if her request is turned down?

Mrs Shaw could claim that:

The maximum amount of compensation that can be awarded for a breach of the right to request flexible working is eight weeks' pay (a week's pay is currently capped at £310).

If Mrs Shaw felt that the refusal of her flexible working request represented a fundamental breach of her employment contract, she could resign and claim constructive dismissal. However, this is not usually an attractive option for employees as the burden of proof for showing that the breach was fundamental rests with them and this can be difficult to prove.

It is possible that Mrs Shaw could claim indirect sex discrimination as there is evidence to suggest that the majority of carers are women. However, employers that turn down a flexible working request under the current provisions (ie to care for a child) are at more risk of sex discrimination claims as, statistically, women have greater childcare responsibilities than men and are therefore more likely to be disadvantaged by a requirement to work full time.

In addition, a rejection of Mrs Shaw's request could give rise to an age discrimination claim, since middle-aged workers are more likely to have elderly dependent relatives.

Employers should be aware that carers may also be able to claim disability discrimination depending on the European Court of Justice (ECJ) ruling in Coleman v Attridge Law and another (C-303/06). Ms Coleman is seeking protection under the Disability Discrimination Act 1995 despite the fact that she is not disabled (she has a disabled son for whom she cares). The tribunal has referred her claim to the ECJ for it to determine whether or not the Equal Treatment Directive covers 'associative discrimination' (ie discrimination against a non-disabled person on the grounds of his or her association with a disabled person). The outcome of the case could have major implications for employers. It is likely to be heard later this year.

Next week's article will feature some frequently asked questions on flexible working.

Sue Nickson is Partner and International Head of Human Capital at Hammonds (Sue.Nickson@hammonds.com)

Further information on Hammonds Solicitors can be accessed at www.hammonds.com