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Flexible Working Requests - Expert Comments

David Reid
1st Jul 2005

As parents of young children become more aware of their right to request a flexible working pattern, we consider whether the wide bases on which an employer can legitimately refuse an application really do make this a "toothless" law.

The employer can reject the request for a wide variety of statutory reasons, including reasons relating to cost, performance, and quality. Normally, identifying a lawful reason for refusal will not be too difficult.

 

Additionally, the statutory language suggests that even a minor effect on the employer's business in one of the prescribed areas is sufficient to justify a refusal.

 

The employee only has recourse to tribunal if the employer failed to follow the correct procedure, refused the application for an impremissible reason, or based its decision on incorrect facts.

 

The tribunal's power is limited to sending the application back to the employer for reconsideration and awarding up to eight weeks' pay as compensation.

 

Therefore, employers could be forgiven for believing it is relatively safe to reject an application, even if the additional cost or effect on performance of accepting the application would be minimal.

 

However, there is a real danger to employers in rejecting requests on fairly insubstantial grounds, and that danger comes from sex discrimination laws.

It is trite law that requiring a woman to work full time is prima facie indirect sex discrimination, which will only be lawful if there is objective justification for the requirement.

 

In considering justification, a tribunal will weigh the prejudice caused to the employer by allowing the employee to work part-time against the prejudice caused to the employee by requiring her to continue to work full-time.

 

Therefore, a reason that is sufficient to reject an application for a flexible working pattern may not be sufficient to successfully defend a sex discrimination claim.

 

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