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Making flexible working work

06 July 2006

When it comes to flexible working, the leisure industry perhaps offers a greater range of shifts and working patterns than other sectors. For many this is a positive factor: working outside the usual 9am to 5pm allows individuals to balance work with other responsibilities, including childcare. However, for many others the very same reasons are a definite downside and the evening/weekend work is far from popular.

This can be for a variety of reasons, ranging from social calendars to religious beliefs. Even for those who enjoy the flexibility inherent in the industry, there can be the need to ask for more flexibility from the employer. But what are the employer's obligations when faced with a request to change working hours?

The most obvious right is the formal right to request flexible working. This has been in place since 2002 and enables employees with children under the age of six to request a change in their working patterns.

This could be their working hours, days worked or the place of work. The Flexible Working Regulations of 2002 set down a formal procedure for a request to be made and considered.

Employers should also be aware that the Work & Families Act 2006, given Royal Assent on 21 June 2006, will allow the flexible working regime to be extended to carers of adults from April 2007.

The employer can refuse the request but only for one of the specific statutory grounds. These grounds include the burden of additional costs, detrimental effect on meeting customer demand and an inability to reorganise work among
existing staff. These grounds are generally thought to be quite favourable to an employer and the level of compensation available to an employee where the procedure has been breached is limited to up to eight weeks' pay.

However, a request under the flexible working regime tends to mask a higher risk for employers. This higher risk is sex discrimination. It has been accepted before Employment Tribunals that women tend to have greater childcare responsibilities and as such have greater difficulties in meeting the demands of most standard working weeks. It is on this basis that a request by a woman with childcare responsibilities, if denied, could give rise to "indirect" sex discrimination.

Under the flexible working regime, an employer can point to one of the statutory grounds with confidence. Under sex discrimination rules, an employer has to go much further. It is not simply enough for an employer to rely on the fact that this is how they run the business or this is what customers need.

An employer must properly examine what it is asking of the employee (and why) and then look at whether there are different ways of covering the needs of business which have less impact on the employee. Refusing a request for a change in working patterns where this involves sex discrimination is far more costly than under the flexible working regime. There is no cap on the potential award of compensation.

It is not only those with young kids that have a statutory basis for requesting flexible working. Under the disability discrimination legislation it may be necessary for an employer to make adjustments to accommodate a physical or mental condition. Failure to do so may amount to disability discrimination.

The Employment Equality (Religion or Belief) Regulations have also been in force since 2003. These too incorporate the concept of "indirect" discrimination. In the context of flexible working, this throws up issues such as requests to not work on holy days, whether this is a Friday, Saturday or Sunday.

A recent case involved a practising Christian. On applying for her job, she made it clear she could not work on Sundays. However, some time after she started, she found that she was on the rota to work on a Sunday. She was also told that if she didn't want to work the shifts she should resign, which she did. An Employment Tribunal found that she had been indirectly discriminated against because, although the rota applied equally to all staff, it put Christians at a particular disadvantage.

In another case, a Muslim employee wanted to take time off to undertake a pilgrimage to Mecca. The employee asked to use his annual leave entitlement to do so. He didn't receive a formal response but his manager said he could assume that the leave had been granted. However, on his return to work, he was dismissed. This was again found to be discrimination and he was awarded £10,000 in compensation.

Both of these cases are as much examples of poor communication and process as discrimination. However, they do demonstrate the potential claims available to employees who are asking for flexible working for religious reasons.

A difficulty faced, and feared, by some employers is how to deal with a number of requests for flexibility relating to the same day or time. Part of the answer is that the employees have no absolute right to the time off. What the employer must do is give serious consideration to the requests and seek to meet them as far as possible.

Ultimately, if too many people are seeking to be off at a particular time and this is genuinely a problem for the business, a solution may be for the employees to agree to a rota system.

Quite apart from the legal obligations, a growing number of businesses are embracing the world of flexible working and extending it to all employees and not simply those with statutory rights. This is to establish a level playing field, which also reflects the view that flexible working improves morale and staff retention.

Contact

Michael Bradshaw Sports & Leisure Group Charles Russell Tel: 020 7203 5045 E-mail: Help managing maternity leave Small businesses often have little experience of dealing with pregnant employees and working out maternity leave entitlements. Business Link has set up a new questionnaire on its website that aims to guide employers through their obligations to pregnant staff and return to work issues such as flexible working. Go to www.businesslink.gov.uk/maternityMcdonald's Keeps it in the family McDonald's is piloting family contracts around the country. They enable two people from the same family both working in the same McDonald's to cover each other's shifts with no prior notice or managerial permission - whichever family member decides to work the shift simply turns up. Pairs can be made up from any combination of family members. Flexible working: key points Eligible employees are the mother, father, adopter, etc (or partner of any of these) of a child under six (or 18 if the child is disabled). From April 2007, the carers of adults will also be eligible. The employee must have 26 weeks' service in order to make an application. The right is to make a written request, not to have flexible working. A request can be for a change in the hours, time or location of work. A meeting must be held to discuss the request and the employee has the right to appeal. An application may be refused on the grounds of: burden of additional costs; detrimental effect on the ability to meet customer demand; inability to reorganise work; inability to recruit staff; detrimental impact on performance; insufficient work or planned structural changes. Any changes agreed will be permanent. The employee may make only one application within 12 months. Disability discrimination legislation: an employer may have to adjust working patterns to accommodate the adverse impact that a disability has on an individual's ability to work. Employment Equality (Religion or Belief) Regulations: flexible working may need to be granted to avoid claims of "indirect" discrimination.
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