FLEXIBLE WORKING - 24.04.2006

Can you say “no”?

Baby boomers

An increasing number of women who have babies are requesting to return to work on a flexible basis (something that’s encouraged by our family-friendly legislation). Whilst some employers are quite happy to oblige, many still aren’t sure of their legal obligations. Their responses vary from “it’s not our policy” to “it just won’t work”. This could land an employer in a whole heap of trouble because such reactions could amount to indirect sex discrimination. With average awards for sex discrimination exceeding £14,000 it could also prove to be an expensive mistake.

Recent case

Requesting flexible working is a subject that we’ve covered on several previous occasions. Although there are nine statutory grounds for refusing such requests (the burden of additional costs; a detrimental affect on your ability to meet customer demand; inability to organise work amongst existing staff; inability to recruit additional staff; detrimental impact on quality of work; detrimental impact on performance; insufficiency of work; planned structural changes; any other grounds specific in the Regulations), as each case passes through the courts, the burden on the employer is becoming ever more difficult to discharge.

In the case of Hardy & Hansons plc v Lax, the employer lost a sex discrimination case when it turned down a request from a manager to work either part-time or to job-share. The scenario was a familiar one with the employer insisting that the job had to be done on a full-time basis. Having been dismissed, she claimed both unfair dismissal and indirect sex discrimination. The employer probably thought it was reasonable in insisting on the job being done full-time (most employers do in this situation). In fact the tribunal said that the employer had “greatly exaggerated” the problems that would occur if the job were done on a part-time or job-share basis. Furthermore, the reasons given by the employer to justify its decision did not outweigh the impact on the employee.

Dealing with requests

Overall, this is a bad news case for employers. It shows that tribunals will look very closely at the impact on the employee of not being able to work flexibly. So how should you play it?

Tip 1. Sit together to see if her proposal could possibly work. Do this as soon as you can and, if she’s still on maternity leave, contact her to arrange a meeting at a convenient time/place.

Tip 2. Don’t give a “yes/no” answer immediately. Give some serious consideration to the request - many employers trip up here. If, after due consideration the answer is “no”, make sure you have evidence in support, e.g. rosters that show there are insufficient staff to cover the workload.

Tip 3. Consider a trial period of three months for the flexible working. If it doesn’t work out then she’ll either have to work full-time, take another available job or leave.

The next step

For full details of the procedures to be followed with such requests visit http://personnel.indicator.co.uk (PS 08.08.03).