Managing flexible working
Employees' awareness of the right to work flexibly has increased1 and it seems inevitable that more and more requests to change working hours will be made. It will generally be line managers who have to deal with such requests. Diversity Law Essentials provides guidance on avoiding the pitfalls of discrimination when managing flexible work requests, and sets out good practice.
The benefits of offering flexible work patterns are widely recognised and there has been an increase in the number of organisations offering them2. This has been against a background of the government implementing family-friendly policies, with parents now having the right to request a change in working patterns. This article provides guidance on the discrimination law provisions that may give rise to employment tribunal claims if flexible working is not managed properly.
The right to request flexible working is fairly limited, and employers are able to refuse such a request for "business reasons" as set out in the legislation. However, a refusal that is lawful under that right does not preclude a successful claim of unlawful discrimination. Further, the maximum compensation that can be awarded for breach of the right to request is eight weeks' pay, whereas there are no limits to compensation for unlawful discrimination.
Why discrimination?
The type of discrimination most likely to arise is indirect sex discrimination, as defined in the Sex Discrimination Act 1975 (SDA) (see box 1). Indirect discrimination arises where an apparently neutral employment practice that applies to everyone is in fact disadvantageous to a particular group. So where a manager requires employees to work full time this can be to the disadvantage of women as many more women than men have childcare responsibilities. Clearly, this has implications in dealing with employees who need an employment pattern that is different from the "norm".
Applying a provision, criterion or practice
In its consultation document on the Regulations amending the SDA, the government gave examples of indirect discrimination, and these included requiring employees to work their normal hours without variation, and a refusal to allow employees to work from home. These could amount to a provision, criterion or practice as set out in the definition of indirect discrimination.
Putting women at a particular disadvantage
- In considering whether or not an hours of work requirement put women at a particular disadvantage, the tribunal can take a broad approach and use its own knowledge, and in many cases the tribunal accepts the fact that women are less likely than men to be able to work full time due to childcare responsibilities.
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Example In Kaur v David Lloyd Leisure Ltd (EOR 118), the claimant, a single parent, was dismissed as she was unable to work the "duty manager rota" as it involved shifts. Her argument that shift work was bound to have a disproportionate adverse effect on women, as more women than men have childcare responsibilities, was accepted by the tribunal. |
- Statistical evidence of indirect discrimination is often readily available to claimants.
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Example An employer's requirement that the claimant work evenings and weekends was found to be indirect discrimination in Clarke v Telewest Communications plc (Case no.1301034/04). The claimant referred the tribunal to two reports from the Equal Opportunities Commission, which supported the widely accepted conclusion that a greater proportion of women than men work part-time due to childcare, and highlighted the fact that a lower proportion of women with children worked evenings and weekends compared with the proportion of men with children. Although the statistics did not show the reasons why fewer women with children did not work evenings and weekends, the tribunal found that such information would be "practically impossible" to obtain. |
- Although the disadvantage to women with childcare responsibilities is widely accepted, the position on eldercare is not so clear.
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Example In Brymer v Essex Police (EOR 118) Ms Brymer had caring responsibilities for her elderly parents and claimed the imposition of a 24-hour shift system amounted to indirect discrimination as "it was well known" that more women than men had such responsibilities. The tribunal was unable to say whether or not significantly more women than men were in this position. |
- However, the available statistics demonstrate that more women than men are responsible for eldercare, and managers should take as much care with requests from eldercarers as with those from childcarers.
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Example In a report from National Statistics, Carers 2000, it was found that women were more likely to be carers of the sick, disabled and elderly than men - 18% of women take on this role compared with 14% of men (available at: www.statistics.gov.uk). |
Justification
- Most tribunal cases turn on the issue of whether or not an employer's refusal to allow a different pattern of work was justified (or, under the new definition, a proportionate means of achieving a legitimate aim - see box 1).
- It will be necessary to show that there has been an attempt to balance the needs of the employer with the reasonable requirements of the employee.
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Example A civilian scene of crimes officer (SOCO) who worked on a job-share basis was discriminated against when she was required to work one shift a week which clashed with her childcare commitments. The employer had made no attempt to assess the discriminatory impact of the new arrangements, and so failed to justify the imposition of the new shifts. Griffin v West Midlands Police Authority (EOR 118). |
- Requiring set hours of work without evidence of why this is necessary is likely to be unlawful discrimination.
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Example A claimant who was dismissed when she left
work early to collect her son from school was discriminated against. She
had requested a change in her working pattern to allow her to meet her
childcare commitments but still work the same number of hours. A tribunal
held that the employer had not justified a provision that employees work
until 5pm. There was no evidence that the work done up until that time
could not have been done in the mornings on another day. |
- It is not enough to give vague and unspecific "business needs" as a reason for refusing a change in hours, even if the reason is found to be enough to satisfy the statutory right to request flexible working.
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Example An employer's refusal to reduce an employee's working hours by half an hour a day, on the grounds that it could potentially have a detrimental effect on customer service, was not justified as the reasons given were "vague and unspecific", in Caswell v Advance Travel Partners UK Ltd (EOR 146). The tribunal found that the reasons given by the employer were "simply management mantras" with no explanation as to how the reduced working hours could adversely affect customer service. |
- It will be unlawful if part-time working or flexible hours are refused because a manager feels that it would encourage other requests for flexible working, or because they do not want to set a precedent that will mean they will have to accede to other requests. Each request for a change in working pattern should be considered on its own merits, with the manager giving full consideration to the impact on the employee and the needs of the business.
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Example In Parry v De Vere Hotels and Leisure Ltd (EOR 146), the claimant's request to work different hours on her return from maternity leave was refused. She was told that if she was allowed to work hours to suit her childcare "it will open the doors for every pregnant woman in the company and future mums will want to do less and less hours and times to suit childcare". The tribunal found that the principal reason for refusing the claimant's request was concern not to set a precedent for other "mums". The unlawful indirect discrimination was, therefore, not justified. |
- If a manager requires an employee to work full time, five days a week, there must be a good reason for the requirement, more than mere inconvenience or a risk of inefficiency that might be caused by irregular work patterns.
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Example A cashier who was refused a change from working five days a week to three days a week was unlawfully discriminated against. In Vincent v National Bank of Abu Dhabi (EOR 146) the tribunal found that having cashiers who worked part time would involve "some administrative inconvenience", but that did not outweigh the discriminatory effect of the requirement to work full time. In Webster v Princes Soft Drinks (EOR 146), the employer had given too much weight to the fact that any irregular pattern of work might cause some inefficiency. The claimant's request to reduce hours could have been covered by a job-share arrangement. More consideration needed to be given to how potential inefficiencies could be overcome, rather than assuming that two managers could not manage as effectively as one. |
- A failure to consider a trial period to assess the impact of a change in hours worked is likely to be unlawful discrimination. It is important that the effect upon the business of any change is evaluated before an employee is asked to revert to the original hours.
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Example In Terry v ICM Computer Solutions plc (EOR 143), the claimant was allowed to work shorter hours (starting at 9.30am instead of 9am) on a temporary basis, for three months, following her return from maternity leave. This was extended by a further three months, with the support of her manager. However, when the claimant was assigned to a different manager, he required her to revert back to the 9am start. When she left and claimed unlawful discrimination, the tribunal found that the employer had made an assumption that the claimant's shorter working hours would have an adverse effect on customer service and performance. However, there was no evidence of a detriment to the business during the period she worked shorter hours and her claim succeeded. |
- It will be unlawful to refuse a job-share arrangement on the basis of mere inconvenience. However it can be justified where no job-share partner is available.
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Example An employer justified the withdrawal of a job offer from a candidate who wanted to job-share. The position needed to be covered as a full-time job, although it was accepted that it could be done by two people. However, the tribunal accepted the employer's explanation that there were so few people in the area with the relevant experience and qualification and the prospect of someone suitable wanting to job-share was so remote that they could not delay re-advertising the post. Tarrant v South East Regional Probation Training Consortium (EOR 109). |
- If a manager can demonstrate that the impact of flexible working arrangements have been fully considered, and there are special circumstances that require the employment pattern to continue as it is, then any discrimination will be lawful.
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Example In Moore v (1) The Governors of Kingsmeadow Comprehensive (2) Gateshead Metropolitan Borough Council (EOR 118) the school was justified in refusing a request to go part time by the claimant who was head of the maths department. This was not "an obdurate refusal to contemplate part-time working or job-sharing, but a reasoned response on its special circumstances". The school had experienced problems, particularly in the maths area, and the employers response was directly associated with the functional requirements of the school. |
- Although a refusal of a right to request flexible working that is lawful under the statutory right is not necessarily lawful under the SDA, the grounds for refusal given under the statutory right can help a tribunal to decide whether or not there is justification for discrimination under the SDA.
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Example In McPollard v Viking Pumps (Humberside) Ltd (EOR 118) the tribunal found that identifying relevant factors under the request for flexible working provisions had helped it in considering the objective balance between the discriminatory provision and reasonable needs of the employer. The tribunal took account of various reasons relating to the problems that would be created in trying to recruit someone to job-share with the claimant. It accepted that the employer had given consideration to the discriminatory effect upon the claimant, but that this was outweighed by the business needs. |
- So long as the manager carries out the appropriate balancing exercise between the needs of the employee and of the business, and so has clear grounds for imposing certain employment patterns, then any discrimination that arises from it is likely to be lawful.
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Example In refusing a sales executive permission to reduce her working hours to three days a week, the employer took into account, amongst other things, the impact upon the rest of the sales team and the difficulty in allocating commission where more than one sales executive had to deal with a client. The tribunal was satisfied that the employer had carried out the appropriate balancing exercise, and the refusal was justified. Dolan v Radio Clyde Ltd (EOR 146). |
Requiring employees to work flexibly
As it is generally accepted that "antisocial" hours of work put women at a disadvantage because of childcare commitments, it may be that provisions that require employees to work irregular hours, additional hours (over and above their normal working day) or at short notice will result in discrimination. This may, of course, be "a proportionate means to achieve a legitimate aim", ie justifiable discrimination.
- Requiring employees to work "as and when" required may make it difficult for those with childcare responsibilities to carry on working. If an employer needs total flexibility from employees, it must ensure it has evidence of a real need for flexibility.
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Example In Manning v Wick Hill Ltd (EOR 110), the tribunal did not accept that the employer had a need for total flexibility. The employer had not carried out sufficient research and analysis to reach a sound conclusion, and the claimant's availability had not been thoroughly investigated. |
- Although working additional hours may be desirable, it can be unlawful to impose extra hours as a requirement.
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Example In Maidwell v HM Prison Service (EOR 110), the claimant was unable to take up a post as head of residence at a prison as, in addition to the normal working hours, she would be expected to attend the prison on a regular but occasional basis early in the morning or in the evening. This was not possible for the claimant due to childcare. The tribunal found that although this additional attendance would be "commendable" it was not necessary, and its imposition was unlawful discrimination. |
Discrimination against men
A male parent whose request for flexible working had been refused would not be able to claim indirect sex discrimination, as it does not put men generally at a disadvantage even though it may put the claimant individually at a disadvantage. Men in this situation could, however, successfully claim direct discrimination if a tribunal accepts that a woman in the same position was or would have been treated differently, ie would have been granted the request.
- It is important that managers deal with requests for flexible work fairly, and in the same way for both women and men.
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Example In Campbell v Consignia plc a male employee with a young child was unable to work the required hours. Allowances had been made to enable him to finish his shifts early, but following customer complaints, the hours had to be reinstated. The claimant claimed he had suffered direct discrimination. But the tribunal held that the hours had been imposed for good business reasons, and a hypothetical woman in the same circumstances would also have been required to work those hours. Therefore, there was no discrimination. |
Disability discrimination
Under the Disability Discrimination Act 1995, not only is it unlawful to discriminate on grounds of disability, but there is also a duty to make reasonable adjustments for a disabled person who is placed at a disadvantage because of their disability.
Reasonable adjustments may include accommodating different hours of work; for example, to allow a disabled person to travel outside of rush hour, or additional breaks to overcome fatigue (DRC Code of practice on employment).
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Example A claimant who had repetitive strain injury reduced her hours to two days a week, but was later dismissed. The tribunal found that the dismissal was due to the employer's dislike of part-time working. As the claimant became part time because of her disability, there was a causal link between her disability and her dismissal. She was treated less favourably for a reason related to her disability and therefore had been unlawfully discriminated against. Ashmore v AMH Holdings Ltd (EOR 122). |
Religious discrimination
Flexible working policies can help to allow ethnic minority employees celebrate holy days and festivals. The recently established Employers' Forum on Belief (Flexible working to cover holy days), comprising high-profile employers such as BT, Land Registry, Barclays and B&Q, has pledged to extend flexible working policies to include time off to accommodate different beliefs.
Refusing requests for time off or to change working hours to meet religious requirements is likely to result in unlawful indirect religious discrimination, unless the refusal is for a justifiable reason.
Remedies
As stated above, there is no limit on the amount of compensation that can be awarded in discrimination cases.
Further, if an employer does not deal adequately with a grievance raised in relation to a refusal to deal with a flexible working request, the amount of compensation will be increased in accordance with the statutory grievance procedures (Discrimination complaints - the new regime: Part 2). A recent award of almost £30,000 illustrates how costly it can be.
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Example In Giles v Geach and Jones t/a Cornelia Care Homes, the tribunal held that requiring a payroll clerk to work more than 16 hours a week was unjustified indirect sex discrimination. It found the employer's attitude to flexible working to be unreasonable, given their unwillingness to discuss the issue. It awarded the claimant £5,000 damages for injury to feelings plus £2,000 aggravated damages. The award was increased by a further 40% to reflect the employer's serious breach of the statutory grievance procedure. The total amount awarded, including financial loss, was £29,294.19. |
1Results of the second flexible working employee survey are available at: www.dti.gov.uk/publications (see More employees aware of flexible working rights).
22004 Workplace Employee Relations Survey, available at: www.dti.gov.uk/publications (see Flexible working becoming more widespread).
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Box 1: Indirect sex discrimination Indirect sex discrimination is defined in s.1(2) Sex Discrimination Act 1975 (as amended) as where an employer applies a "provision, criterion or practice" (PCP) to both women and men that:
This definition was amended in October 2005 (SDA amendments: an EOR Guide). The first main change is to the requirement that the PCP puts women at a disadvantage, rather than has a disproportionate effect. This amendment recognises that it is not always possible or necessary to show detailed statistical evidence of a particular disadvantage. However, such evidence will still be helpful in some cases. The second change is to the test of justification, from "justifiable" to "proportionate means". In practice, this is likely to have minimal effect as, under the old definition, the tribunals were required to balance the discriminatory effect of the PCP against the reasonable needs of the employer. |
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Box 2: Key case British Airways plc v Starmer (EOR 145) Mrs Starmer is a qualified commercial pilot. Following maternity leave, she requested a change in her working hours, to 50% of full time. This request was refused, although she was told she could work 75% of full time or continue full time. It was held that the employer had applied a provision, criterion or practice (PCP), and that it was to the detriment of a considerably larger proportion of women than men (or, under the new definition, it would be to the disadvantage of women). British Airways (BA) argued that the refusal was justifiable. The Employment Appeal Tribunal upheld an employment tribunal's decision that the refusal to allow 50% of full-time working had not been justified. Two important issues were considered:
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