Time to be Flexible!

With an increase in the number of employees striving for the perfect work life balance, there has been a rise in the number of applications for flexible working which an employee can make in accordance with the provisions of the Employment Rights Act 1996 and, subsequent supporting regulations.

A recent report by the TUC, "Out of Time", indicates that since the right to request flexible working was introduced, 10% of male employees have approached their employer about changing their hours. Interestingly, UK managers have looked more favourably on female workers in dealing with such applications as only 10% have had their applications rejected, compared to 14% of requests made by men.

The legislation allows employees to formally apply in writing to his or her employer to request a change in hours, times or location of work for the purpose of enabling the employee to care for a child. This can include reduced hours or home working. An employer can reject an application on the basis that there are business grounds which makes the application impracticable. This can include the extra costs such as change would involve; the inability to reorganise work among existing staff; insufficiency of work during the period the employee proposes to work; or the inability to recruit additional staff.

However, employers need to ensure they can justify their decisions. The danger in terms of facing a claim with heavy financial penalties is not in turning down the request, but rather that an individual may then claim that the refusal was an act of sex discrimination.

This is exactly the scenario faced by Hertfordshire Police. Butler, a female police officer, has recently been awarded £93,000 for sex discrimination following a failure by Hertfordshire Police to consider her request for flexible working following the birth of her child. Butler claimed that her manager refused her repeated request to work more flexible hours or to transfer her to a different department. The Employment Tribunal sitting in Watford found that there had been "no investigation as to whether or not Miss Butler could be accommodated" and the Force had ignored the fact that she was "exhibiting signs of exhaustion" in carrying out her duties.

The timing of the case could not be more appropriate. Research by Cranfield School of Management of Human Resources Research Centre has highlighted that following a study of 8,000 companies across 32 countries, only 48% of UK's companies offer flexible time working conditions to their employees, compared to 94% in Sweden, 92% in Finland and 90% in Germany.

The lesson for employers is clear:-

• Ensure that you have a policy in relation to flexible working and that all staff are made aware of this policy. Line managers should receive training on the main points of the legislation and the duty to consider applications within the required statutory time frame.
• Deal with each application sensitively and ensure that all avenues of potential flexibility in relation to working arrangements are considered; and
• If an application is turned down, an employer must have a valid reason and be in a position to have adduced evidence to support that decision. If there is any concern that the decision could be viewed as discriminatory then advice should be taken.

Please contact David Gibson for further information.

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