How to avoid ‘value judgments’ and discrimination claims
It's nearly a year since the right to request to work flexibly was extended from parents and carers to all employees with 26 weeks' service. Prior to the change, it was suggested that over a quarter of UK workers would request flexible working. Anecdotal evidence suggests there has only been a small increase, and that these increases are often from older workers wanting to reduce hours prior to retirement. However, some sectors have seen pockets of requests, including requests by all members of a group of staff – for example, in education. In such cases it may not be that the employee wants to work fewer hours, but to specify the days and hours of teaching time.
The government's recent pledge, now contained in the Childcare Bill, to increase free childcare in England for 3 and 4-year-olds to 30 hours per week for 38 weeks of the year could increase flexible working requests, or increase requests to change flexible working patterns that have become permanent contractual variations. Employees who have previously reduced hours to care for young children may want to increase hours to take advantage of free childcare, at least in term time. How should employers respond?
When dealing with competing requests, the key is to start with the business context, and whether it is a 'standard' request, or a collection of requests by multiple employees, or a request to increase hours.
The employer has eight potential business grounds for refusing a request, including the burden of additional cost and detrimental effect on ability to meet customer demand. Acas guidance (pdf) notes that "requests should be considered in the order they are received. Having considered and approved the first request…remember that the business context has now changed and can be taken into account when considering the second request".
Employers may be delighted if staff request more hours as a result of proposed free childcare. However, someone else may have been recruited to cover the flexible working and there may now be insufficient work for the periods the employee wants to work. Or it could be impossible to reorganise work among existing staff to accommodate term-time working.
Where a number of employees are already working flexibly and it's difficult to accept further requests, the Acas guide suggests employers ask for volunteers from those who might want to revert to their original arrangements, which could allow new requests to be agreed. However, it's important that this is voluntary and no assumptions are made. In one case, an employee had her arrangements to work from home two days a week (which she'd done for 10 years) revoked for 'business reasons'. She claimed direct sex discrimination because a male colleague with similar childcare responsibilities continued to be allowed to work from home. Her employer argued she no longer needed the same flexibility because her children were now at school and other employees wanted to work flexibly.
The employee won, partly because her manager had personal motives for treating her less favourably and the employer's explanation of 'business reasons' was false. The employer had not reconsidered her colleague's working arrangements or those of other team members. Looking at the whole picture is vital.
Because compensation for breach of the right to request flexible working is limited to eight weeks' pay, most employers are more concerned about a potential claim for discrimination. It is tempting, therefore, to give preference to a request by a mother asking to work part-time, or a Muslim wanting to have Fridays off, or an older worker asking for 'flexible retirement'. The Acas guide gives the example of a person with Crohn’s disease who experiences severe fatigue especially in the mornings. Allowing a later start time might not just be flexible working, but a reasonable adjustment under the Equality Act 2010.
It is unwise to respond to requests solely on the basis of who might have a discrimination claim, especially if many requests are received at the same time. The Acas guide advises against making “value judgments”. However, it is hard for employers to avoid this where the consequence of rejecting a request is a possible discrimination claim with unlimited compensation.
Ruth Christy is an associate and professional support lawyer in the employment team at Blake Morgan
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