Flexible Friends

The right to request flexible working will be extended for parents with children under the age of 18. Currently it only applies to carers of children under the age of 6 and those with disabled children under the age of 18.

This is great news for parents but will create an even greater burden on employers.

At first sight this new right is less onerous for employers because they do not necessarily have to grant the request for this flexibility.

The employer can simply refuse the request, but his grounds for refusal must be included in the regulations. For example where flexible working will have a detrimental impact on performance or a detrimental effect on their ability to meet their customers’ demands.

However it is no good if the employer reaches these conclusions without properly investigating the implications of flexible working.

A recent example was an employment appeal tribunal’s rejection of a case brought by a warehouse manager applying for flexible working.

The employer argued that the part time pattern requested would cause a detrimental impact on performance in the warehouse.

They also believed it was very important for staff to start work at the same time and finish at the same time in order to create a sense of teamwork.

The employee resigned and claimed constructive dismissal taking the employer to the Employment Tribunal for constructive dismissal and for failing to properly consider her request for flexible working. The Tribunal decided that the employer was in breach of the flexible working rules because they gave an outdated response to the request for part time working which was made “off the cuff and without research”. They did not show that working as a part time warehouse assistant was not feasible. The Tribunal said that the work could have been reorganised so that there was no detriment to the service provided to the customers and that the other members of the workforce would have been well able to cope if it was organised properly.

The Employment Appeal Tribunal said “They did not provide a shred of evidence to show that a proper enquiry and a proper investigation had been carried out” and awarded over £14,000 in damages to the employee.

It is important for employers to understand the complicated process of complying with these regulations. They must meet with the employee and investigate the matter carefully. Once they have made their decision it must be given in writing and allow the employee the right to appeal.

Extending flexible working to parents with children up to the age of 18 means many more applications of this nature. Whilst flexibility may be a friend to parents it may not be such a good friend to employers.

Caroline Mitchell is a partner in Foot Anstey’s employment team.

Published 27/05/2008. The author of this article is Caroline Mitchell