Kirsa Edwards gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on the right to request flexible working.
The question:
Help, I think I may have messed up! We have an employee who has requested to work part time. I completely forgot that this person did not have young dependants and said that she has a right to request the part time work and that she should put her request in writing and we had a duty to consider it.
This she did and I have agreed with her relevant bosses that in principle it is fine to reduce her hours once we have sorted the logistics out, i.e., hours to be covered elsewhere etc. However, she mentioned that her reasons for wanting to work part time were partially health related and she felt it would give her a better work life balance.
Her boss is now querying this and feels we should be involving occupational health. I’ve already told her it is fine in principle and I had told her boss that anyone has the right to request to work part time provided we do not have sound business reasons for refusing.
Where do I go from here? I’ve told her it’s ok but now it may not be and I’ve told her boss anyone had the right to request and now I’ve remembered this only applies to carers of children under six or disabled under 18!
Personally I don’t think allowing her to work part time would cause any detrimental effect to the organisation as although we would have to advertise for someone to cover the extra work it would still be cost neutral. Should I involve occupational health? Any advice most welcome, thanks!
The answers:
Helen Badger, employment law expert, Browne Jacobson
The right to formally request flexible working only applies to those employees with children under the age of six (or up to 18 if the child is disabled). However, the law is more complex when governing requests not covered under the flexible working regulations, as is the situation here.
Under the Sex Discrimination Act, applying a provision, criterion or practice which would put women at a substantial disadvantage when compared to men, which does not represent a “proportionate means” of achieving a legitimate business aim, would be deemed indirectly discriminatory and therefore unlawful.
It is a fact that in many workforces, a greater proportion of women are likely to need to work part time, partly due to childcare responsibilities. Therefore rejecting, or failing to give genuine consideration to requests for flexible working from women who do not have the statutory entitlement to make one, could put them at a disadvantage when compared to men, as for example. They may have genuine childcare requirements relating to children over six.
A staff member could therefore claim indirect discrimination against their employer if they were refused part time work. As a result, it is important to consider requests for part time work in any event.
In addition, there is the duty to make reasonable adjustments under the Disability Discrimination Act 1995.
This duty requires you to consider such adjustments as part time working. Whilst you do not state what this employee’s health problems are, it is certainly possible that she could be suffering from a condition which would amount to a disability under the DDA.
It would be wise to explore the health issues further so that the company is fully informed about the employee’s condition. Involving Occupational Health, subject to the employee’s consent, would be a sensible course to take.
This could be sold to the employee on the basis that she has indicated she has problems with her health and, as a caring employer, you want to make sure you understand these so that you can look at adjustments to her working conditions if necessary.
As you have already told the employee that the proposal is acceptable in principle, if you try to go back on this now you could open the company up to several risks. Firstly you will have the risk of a disgruntled employee. More importantly, the company would struggle to justify the rejection of the proposal, in order to defend a claim of discrimination, given that the employee has been led to believe that it is workable.
However, I think you would be perfectly entitled to inform the employee’s boss that, whilst she does not have the statutory right to request flexible working, the rejection of her request could not only make the company look like an unreasonable employer but could also open it up to claims of discrimination.
Helen can be contacted at: hbadger@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
Don’t panic. Everyone does have a right to request flexible working but not everyone has a right to request it under the Flexible Working Regulations. The Regulations set out a procedure applicable in certain given circumstances but it is not necessarily wrong to apply those principles more broadly in your business.
Clearly if this employee has say child care responsibilities you are obliged to consider flexible working if only to avoid a sex discrimination claim. Likewise, if she is ill then you have a duty of care (both under common law and also statutorily under the Health and safety at Work Act 1974) part of which will be to consider allowing flexible working if there are health reasons for that.
Finally, remember that if the employee falls under the definition of disabled under the DDA you have a duty to consider reasonable adjustments which may well include flexible working arrangements. So a whole host of scenarios where there is, in effect an obligation to consider someone for flexible working.
That is not to say you have to allow flexible working in these myriad scenarios. You may well have good sound business or logistical reasons for not allowing what the employee wants but you must think laterally. A knee jerk ‘no’ may give rise to litigation.
Finally, yes you should definitely involve occupational health. You need to ask for an assessment about the employee’s current state of health in the light of her comments. You need a diagnosis and prognosis. You may want to ask specific questions such as: what is the illness, what is the cause, is the employee incapacitated in relation to her work, what is her immediate level of capability, what will it be in say three, six or nine months etc.
Martin can be contacted at: martin.brewer@mills-reeve.com
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