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Flexible Working: The Poor Relation Of The Discrimination Family?

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The current flexible working provisions are often seen as not worth raising as a stand-alone claim. Although they are sometimes tagged on to a discrimination claim, is that all they are good for?

Previously just for parents and carers, the right to request flexible working has since 30 June 2014 been extended to all employees[1] with over 26 weeks service.  A failure to comply with the duty to consider the request can result in an award of up to 8 weeks’ pay (s.80H ERA).   However there are other claims that can be brought by an employee whose application is rejected.

The most widely used of these is a claim of indirect (sex) discrimination.  For example, the application of a PCP requiring employees to work evenings and weekends was found to be indirect discrimination against a female – lone parent – employee whose application to work weekdays only was rejected (Brennan v Park Vista Care Homes Limited (3401225/13) 26 June 2014 (EOR 253)).  The reasons for refusal put forward by the respondent (detrimental effect on ability to meet clients’ needs; performance; and quality of service) were rejected by the Tribunal on grounds of lack of supporting evidence.  The Tribunal found that the Claimant was clearly disadvantaged by the PCP, as evidence was accepted that women are more likely than men to be lone parents.

The main difficulty encountered by employers in defending indirect discrimination claims is that they often fail to think through fully the reasons they give for the refusal of a flexible working application (FWA), and then have insufficient evidence to present on the point.  For example, in Dykes v  Premier Risk Service LLP  (1806497/13) 21 May 2014 (EOR 253)) the respondent’s reasons for refusal of a contractual variation was said to amount to a “stereotypical assumption of part time workers and their commitment …”.

Another possibility – now FWAs are open to all – is that a failure to agree a variation could amount to indirect discrimination on the grounds of disability alongside a claim of failure to make reasonable adjustments[2].

Two further causes of action not necessarily dependent on a discrimination claim are detriment because of a FWA (s.47E ERA), or automatically unfair dismissal (s.104C ERA) where the reason for dismissal is that the employee makes or proposes to make an application under s.80F; or brings proceedings under s.80H.  In Scutt v Synthomer Ltd (3202956/2012), London East Tribunal, 7 July 2014 (unreported)[3] such a claim succeeded.  The reason given by the respondent for dismissal (redundancy) was rejected in favour of the real reason – the bad working relationship following the employer’s refusal of an earlier FWA for a four day working week.

So employers should give careful consideration when facing FWAs as to whether, for example, all of their clients really will desert them because one employee wants to work part time, and whether they have evidence to support their views.   If they don’t, the disappointed employee may be thinking more creatively than a simple s. 80H claim.


 

  • [1] As defined in Chapter 1, Part 14 ERA
  • [2] The Right to Request Flexible Working: an ACAS Guide, p.13
  • [3] A claim in which the claimant was represented by the writer
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