Flexible working: everyone has the right to request it (with 26 weeks’ service), and all employees have the right to take their employer to tribunal if they suspect they’ve been discriminated against. It’s a minefield…
Though overall tribunal numbers are falling (due to tribunal fees), cases sparked by refused flexible working requests are still prominent.
Only this month an airline employee won a sexual discrimination case after her flexible working request was denied. The airline made their case: they already had too many staff on fixed hours and couldn’t fit any more on them without it having a detrimental impact on the business. This didn’t cut it for the judge, who found the employer guilty of indirect sexual discrimination on the basis that most employees were women of child-bearing age. This meant that women were placed at a disadvantage to men (who in life, and as recognised by case law, often have fewer child-caring responsibilities). A landmark decision which’ll affect the behaviour of employers in the future!
Clearly, no employer wants to take their business into a tribunal battle. Avoid it by getting your processes right and seeking professional advice when needed.
First things first, spell out what flexible working provision your business will provide, and make sure it’s in your employment handbooks (for a free review get in touch). Your wording should outline the employees’ right to request flexible working, how they should apply and that each case will be evaluated on its own merits within the framework of your policy.
With an aging population, more staff will have caring duties for elderly relatives. So we can expect more employees will need a more flexible approach to be able to manage their lives.
It’s decision time. Circumstances will be different for each employer: you may benefit from working with a more flexible workforce. You can find some of those benefits here; so think, would it make commercial sense?
If not, don’t just reject the request out of hand. When you meet with the employee to discuss their request, explore all the options. Be creative and you may find an alternative solution that caters to both their needs and the needs of your business. This will help prevent relations turning sour and leading you down the tribunal route. Even if it eventually did, the fact that you attempted to explore different solutions to the problem would fall in your favour.
When you are in the position where you need to reject a flexible working request, make sure you have a legitimate business reason. If you’re unsure, play it safe and seek advice. Remember you have to complete the process, including meetings, within three months and if you reject the proposed working arrangement they cannot make another request for one year.
Alison Schreiber runs The HR Dept Durham and Darlington franchise, and works with a number of businesses across PBP. For more info, visit HR Dept Durham and Darlington or call Alison on 01325 526036 or 07535 853226.