Flexible working: frequently asked questions

Sue Nickson, Partner and International Head of Human Capital at Hammonds , concludes this month's series of articles on flexible working by answering some frequently asked questions.

How can an employer avoid resentment among employees who are not eligible to apply for flexible working?

Employers should consult employees before introducing any family-friendly working arrangements so that they understand the rationale behind the proposals.

If arrangements are not properly thought through or well implemented, it may cause resentment among employees who feel that they are having to compensate for those employees who work flexibly. Employers may avoid such problems by introducing a right for all employees to request flexible working.

To what extent must an employer consider an employee's request to work on a job-share basis?

Employers should not dismiss any flexible working requests without due consideration. It is important to remember that an employee may be able to claim sex discrimination, as well as a breach of the flexible working provisions, if his or her request is rejected without due consideration.

It will not be sufficient to give vague reasons in response to an indirect sex discrimination claim, even if these would be sufficient to satisfy the test under the flexible working legislation.

The employer should take reasonable steps to find a job-share partner - a tribunal is unlikely to find that the employer was reasonable in turning down a request to work on a job-share basis if it did not take such steps. However, where there is any urgency or where there are any financial constraints, the employer may be able to justify a job-share refusal without having to try to find a job-sharer (see Brown v McAlpine & Co Ltd EATS/0009/05).

Whether or not the steps taken are deemed to be reasonable will depend on the employer's size and resources. The employer should consider whether or not there is anyone within the company who would be suitable for the position. If there is no-one suitable within the company, the employer should consider external recruitment.

In order to claim that it is not practicable to find a job-share partner, the employer will need to provide evidence that it made efforts to find one. If the employer claims that it is impossible for the role to be carried out on a job-share basis for continuity reasons, it will need to provide evidence to support this (eg demonstrating why continuity is necessary and why this cannot be achieved on a job-share basis). The employer will need to demonstrate that it has considered how potential inefficiencies and administrative difficulties could be overcome.

In addition, it will not be sufficient for the employer to turn down a request because it is worried that other employees will want to change their working hours as a result. Each request must be considered on its own merit. In Parry v De Vere Hotels and Leisure Ltd [2005] ET/2101853/04 the hotel turned down Miss Parry's request to work different hours on her return from maternity leave because it would 'open the doors for every pregnant woman in the company and future mums [would] want to do less and less hours and times to suit childcare'. The tribunal held that the main reason for turning down the request was the risk of setting a precedent and this was not good enough.

However, if the employer can show that it has considered the impact of any flexible working arrangements and that there are legitimate reasons why a role cannot be done on a job-share basis, it would be justified in turning down the request.

According to the Court of Appeal in Hardys & Hansons plc v Lax [2005] IRLR 726 CA, the employer needed to show that its refusal to permit the job-share of a full-time role was objectively justified, notwithstanding its discriminatory effect. In addressing this issue, a tribunal would take into account the reasonable needs of the business and would make its judgment based on an analysis of the working practices and business considerations involved as to whether or not the proposal was reasonably necessary. 'Reasonably necessary' does not mean that an employer has to show that the proposal in question (eg for a full-time employee) is the only option available to it (ie it will not automatically fail the justification test simply because there were other options available).

In Girvin v Next Retail Ltd ET1900767/05 Ms Girvin had asked to work on a part-time or job-share basis following her return to work from maternity leave. She set out in detail how she thought her request could be accommodated. Her employer rejected her request to job share due to concerns about communication, employee contact, management time and handover. It also turned down her request to work part time, stating that the workload required continuous presence. Ms Girvin lodged a grievance and when it was rejected she resigned and brought claims of constructive dismissal and indirect sex discrimination. The tribunal upheld her claims and noted that her employer had shown an unwillingness to contemplate a job-share arrangement even though there was no reason, in the tribunal's opinion, why her job could not be done on such a basis.

Can an employer turn down an employee's request to job share if the employee's role involves managing staff?

Employers should not assume that only junior roles can be done on a job-share basis; doing so may mean that they are unable to defend a subsequent sex discrimination claim. As highlighted above, an employer should explore the possibility of the employee's role being done on a job-share basis and should not reject the request without due consideration.

In Given v Scottish Power plc [1995] IT/3172/94 Mrs Given was told that, because she was a manager, she could not job-share. The employer justified its decision on the basis of 'operational' matters and referred to the need for continuity given the importance of handling customer complaints. The tribunal held that the decision was not justified, as the employer had neither assessed Mrs Given's duties nor any difficulties that might be encountered in job-sharing before refusing her request.

Can an employer reject a request to work flexibly due to cost?

As the 'burden of additional costs' is one of the eight permitted business reasons for rejecting a request to work flexibly set out under the Employment Rights Act 1996, section 80G(1)(b), it may be legitimate for an employer to reject a request on cost grounds under the flexible working legislation. However, employers need to be aware that cost will not necessarily be sufficient to defend a sex discrimination claim.

In Cross and others v British Airways plc [2005] IRLR 423 EAT the Employment Appeal Tribunal (EAT) held that an employer cannot rely solely on cost considerations in seeking to justify a discriminatory provision, criterion or practice.

What should an employer do regarding a job-share arrangement if one of the job-sharers leaves?

The employer could offer the remaining job-sharer the position full time, although it should not put any pressure on the employee to agree to this. It may be that the employee is willing to work full time on a temporary basis until the employer is able to recruit another job-sharer. The employer should advertise the job-share position in the same way as any other vacancy. If the employer is unable to recruit a job-sharer and the remaining job-sharer is unable or unwilling to work the extra hours on a permanent basis, it may have to consider reverting the position to a full-time role and redeploying the remaining job-sharer.

How should an employer deal with a flexible working request from a male employee?

Employers should deal with a flexible working request from a male employee in the same way as they would deal with such a request from a female employee.

Employers should not assume that they can safely reject flexible working requests from male employees because the odds of their winning a sex discrimination claim are slim. While this might be the case regarding indirect sex discrimination (because statistically women are the primary carers), it is not necessarily the case for direct sex discrimination. If an employer refuses a flexible working request from a male employee where it would have granted a female employee's request, it may face a direct sex discrimination claim under the Sex Discrimination Act 1975.

In Walkingshaw v The John Martin Group [2001] ET/S/401126/00 Mr Walkingshaw had requested to work part time - two full days a week and Saturday mornings. His request was rejected on the basis that it was too complicated. The tribunal found that the company had always granted requests from female employees to work reduced hours for family reasons, although they were employed in a different department to Mr Walkingshaw, and upheld his claim of direct sex discrimination. In addition, the tribunal held that Mr Walkingshaw was entitled to compare his treatment with that of a hypothetical female employee in the same post.

Employers may also be at risk of marital discrimination claims. In Gleed v Pricewaterhouse Coopers ET/6400323/01 the tribunal held, on a preliminary issue, that Mr Gleed could bring a claim under the Sex Discrimination Act 1975, section 3 (ie that he had been discriminated against on the grounds of marital status) if he had not been selected for employment because he had young children. As 40% of children are born out of marriage and 60% are born within marriage, the tribunal accepted that the proportion of married persons who could comply with a requirement not to have young children is considerably smaller than the proportion of unmarried persons of the same sex.

How should an employer deal with requests to work compressed hours?

Compressed working hours allow employees to work their total number of hours over fewer days (eg working full time over four days instead of five).

Employers should handle requests to work compressed hours in the same way as any other flexible working request. If an employee makes a request under the flexible working legislation, the employer needs to ensure that it complies with the statutory flexible working procedure.

Whether or not an employer is able to accommodate an employee's request will depend on the nature of the employee's job and if the needs of the business can be met by such an arrangement. The employer will need to consider if the employee's work could be arranged in such a way as to enable him or her to work compressed hours.

The employee may be able to bring a discrimination claim if the employer rejects his or her application. If, for example, the request is being made by a woman who wishes to work compressed hours on her return from maternity leave to accommodate her childcare arrangements, the employer would need to consider the risk of an indirect sex discrimination claim if it rejects her request. Defending such a claim would involve balancing the needs of the business against the needs of the employee. The employer would have to satisfy a tribunal that full-time work was justified by reference to whether or not it was a 'proportionate means of achieving a legitimate aim'.

If an employer turns down an employee's flexible working request and his or her appeal and the employee is unhappy about this, can he or she raise a grievance under the employer's grievance procedure?

There is nothing to stop an employee raising a grievance under the employer's grievance procedure. In fact, for certain claims the employee would be required to do this before he or she could present a complaint to the tribunal. For example, if an employee wished to bring an indirect sex discrimination claim, he or she would be required to raise a separate grievance before presenting a claim to the tribunal.

However, the employee 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 the employer has failed in its duties to consider the request) as the statutory procedure does not apply to such a claim.

It should be noted that in Commotion Ltd v Rutty [2006] IRLR 171 EAT the EAT 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.

Does an employer have to allow an employee to work flexibly on a trial basis before it can turn down his or her request?

There is nothing in the legislation that requires an employer to offer a trial period before it can legitimately reject a request. However, if after a trial period has been completed, the employer turns down a flexible working request because the arrangement was unsuccessful, it is likely to have clearer justification in the event of a claim.

How long should a trial period last?

There are no rules governing how long a trial period should last. However, it should be long enough to enable the employer to have a good idea as to whether or not the working pattern would be practicable and viable on a long-term basis. This would normally take at least two to three months.

How should an employer deal with a request from an employee who wants to take time off to care for a relative who lives overseas?

An employee who wishes to take time off to care for a relative who lives overseas is unlikely to be able to make a request under the flexible working provisions, as he or she will probably require a block of time away from work, rather than a change in his or her contractual hours.

Whether or not an employer agrees to such a request will depend on such factors as how much time the employee wants to take off, how much holiday he or she has available, whether or not the employee wishes to take unpaid leave and any policies or procedures the employer has regarding holiday, extended leave, etc. The employer should consider such requests seriously and its decision should, generally, be based on what is practicable and reasonable.

It is good practice for employers to have clear procedures for handling leave requests and to ensure that all employees are aware of and adhere to them. Employers need to be careful to avoid discrimination claims (eg if time off would be granted to employees wishing to care for relatives who live in the UK in similar circumstances).

What factors should an employer consider if an employee makes a request to work from home under the flexible working legislation?

There are a number of practical and legal issues for an employer to consider regarding home working, including: