A recent legal case ruled in favour of an employee whose employer had refused her application for flexible working, in order to collect her daughter from nursery. The request to work a 4-day week and finish at 5pm was denied, resulting in her receiving compensation of £180,000.
The willingness of employers to entertain flexible working request, where once they wouldn’t, is something we now thankfully see as a result of the pandemic. But sadly, there are still a lot of employees, women in particular, who find themselves having to quit a job they love because of employer inflexibility.
Employees often request flexible working informally, by speaking either with their line manager or HR team. There is nothing wrong with this approach and in the vast majority of cases, an agreement will happily be reached on a change to hours or days of work. However, many are perhaps unaware that, since 2014, employees have had a statutory right to request flexible working. This right is available to employees with at least 26 weeks’ employment at the time of the request.
This type of flexible working request is more formal and requires the employee to give their employer notice of the request in a particular form. One requirement is for the employee to specifically state that they are making the request under the relevant legislation.
Where such a formal request is made, the employer is obligated to consult with the employee, to deal with the application in a reasonable manner and to make a decision within 3 months. The employee also has only 8 reasons for which they are allowed to refuse the application.
The formal procedure will not help all employees because employers are entitled to refuse the request. However, employers do have to be careful when rejecting an application for flexible working, whether it is made formally or informally. In some cases, the rejection can amount to discrimination or give rise to a claim for constructive dismissal.
The case below is an example of an indirect discrimination in this context.
Indirect discrimination is where any employer has a policy, practice or procedure which puts someone with a “protected characteristic” at a particular disadvantage when compared to those without that characteristic. The protected characteristics set out in the Equality Act 2010 include sex and disability, by way of example. If a female employee has childcare responsibilities which are the reason for her flexible working request, refusal of that request can amount to indirect sex discrimination because it puts the woman at a disadvantage compared to men (who generally do not have primary childcare responsibilities). Another example might be an individual with a disability. If that person asks for an earlier finish one day a week in order to attend regular medical appointments, refusal of that request is likely to amount to indirect disability discrimination.
An employee who resigns in either of the above examples, is also likely to have a claim for constructive dismissal.
Employees are often unaware of the protections they have in this area. Employers are often aware of the right to request flexible working, but many are perhaps unaware of the possible implications of refusing those requests. This case is a good reminder then for all to take note.
