FLEXIBLE WORKING - 15.12.2005

Avoiding the pitfalls

The right approach

The right of those with children under the age of six (or disabled children under 18) to make flexible working requests has been in existence since 2002. However, employers of all sizes are still finding themselves in tribunal as a result of the way that they managed the rejection process. Two recent decisions show just how careful you need to be when doing this. What can you learn from these employers’ mistakes?

Grounds for refusal

A high-profile case involving British Airways (BA) shows how important it is to pick the right ground(s) for refusing a flexible working request. In Starmer v British Airways 2005, BA lost its appeal over its refusal to allow Starmer (a pilot) to work 50% of her hours in order to care for her daughter. It had agreed to a reduction to 75%, to allow her to gain the 2,000 hours of flying time that it deemed necessary for safety reasons. Once she had achieved this, a further reduction could be discussed. Whilst this seems reasonable, BA had only introduced this rule five months after it had refused her initial request due to the “burden of extra costs”. Apart from the fact that it hadn’t made much attempt to justify it, this statutory defence isn’t really appropriate for such a large company to use.

Revoking a request

You also need to ensure that a new manager doesn’t try to revoke an existing agreement. This is what happened in Langton v Herbert Smith 2005.Herbert Smith, a major law firm, had previously agreed that Langton (L), could work part-time following her return from maternity leave in April 2002. However, a new manager was appointed and he informed her that she needed to revert back to working core hours. This led to a dispute and her eventual dismissal, as it was felt that her job could no longer be carried out on a part-time basis. She also succeeded in her claim and won £40,000 compensation.

Other pitfalls

You should also remember that poor handling of these types of request puts you at risk of an indirect sex discrimination claim. If so, the level of compensation is potentially unlimited. It may also create bad publicity for you with customers, even if it’s just a local newspaper article.

Dealing with requests

These cases illustrate how even large companies (including a major city law firm) can get it wrong. So play it safe and double check on how you deal with any requests for flexible working.

Tip 1. Unless you’re a very small company, think twice before automatically relying on the “burden of extra costs” argument. Instead, do your homework so that you’re in a position to demonstrate; (1) why there are extra costs involved; (2) what they are, and; (3) why they would be a burden on your business.

Tip 2. Ensure that any flexible working requests come to you, instead of being decided solely by a line manager or supervisor. This way any problems can be discussed and any ignorance of the law, e.g. on a new manager’s part, can be dealt with in a way which doesn’t expose you to liability.