FLEXIBLE WORKING

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FLEXIBLE WORKING

The Legal Framework
Anna Kavanagh Time4balance
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Flexible working legislation

• Right to request April 2003
• Sex Discrimination Act
• Parental Leave Regulations
• Time off for dependents
• Part time workers regulations
• Age discrimination legislation

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Sex Discrimination v- Right to Request
Sex discrimination Right to request
Parents and non-parents (Men as well as women can apply for direct discrimination) Only parents can apply
No cap on compensation awards can run into tens/hundreds of thousands 2,080 maximum compensation
Parent can apply regardless of age of child Only parents with child under 6 can apply (or 18 if disabled)
Burden of proof on employers to show objective justification for requirement to work full-time Employers subjective assessment of effect on business
Very bad PR if case is exposed PR is minimal
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Comparison of employment rights
New rights under ERA Rights under SDA
Qualifying period 26 weeks None
Employee/Worker Employees only Workers and job applicants
Parent Mother, father, adopter and partners Mothers generally
Childs Age Under 6 or 18 if disabled No age limit
Time limits? Not later than 2 weeks before childs 6th birthday (or 18th if disabled) Any time
Number of requests Once every 12 months No restrictions
Procedure Prescribed procedure No set procedure
Remedies Limited to maximum of 2080.00, i.e. 8 weeks pay No cap on compensation, injury to feelings, interest
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Right to request who can apply?

• Mother, father, adopter, foster parent, guardian
• Spouse of one of the above
• Partner of one of the above and living with child
• Partner is a person of the same or different sex
  who
• lives with the child and the parent/carer
• is in a an enduring family relationship
• is not a relative of the parent/carer

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The Application

• Check that employee has
• A child under 6
• 26 weeks service
• Not made an application for the last 12 months?

Formal application for flexible hours
Within 28 days (unless, for example, the
person convening the meeting is away)
Meeting held to discuss application. Employee
entitled to be accompanied.
Within 14 days
Employer accepts request and gives
written notice of a start date for the
contract variation
Employer rejects the request in writing on
specified grounds
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Grounds for refusal

• Specified in the legislation
• Burden of additional costs
• Detrimental effect on ability to meet customer
  demand
• Inability to re-organise work among existing
  staff
• Inability to recruit additional staff
• Detrimental impact on quality or performance
• Insufficiency of work during period the employee
  proposes to work
• Planned structural changes

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The Appeal
Employer rejects the request in writing on
specified grounds
Within 14 days
Employee appeals in writing
Within 14 days
Appeal meeting is held
Employer rejects request in writing on specified
grounds
Within 14 days
Employer accepts request, gives start date and
contract variation
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Complaint to Employment Tribunal

• Under ERA an employee can complain to an ET of
  the following
• Refusal on unspecified grounds
• Rejection based on incorrect facts
• Breach of the procedure (including failure
  seriously to consider the application)
• Breach of right to be accompanied or threat of
  breach

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Remedies

• If the complaint is successful, the Employment
  Tribunal
• MUST make a declaration to that effect
• may make an order for re-consideration of the
  application
• may make an award of compensation, which is just
  and equitable, subject to a maximum number of 8
  weeks pay, i.e. 2,080.00.

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Employment Protection

• Automatically unfair to dismiss an employee if
  reason is that the employee
• made or proposed to make an application for
  flexible working
• exercised or proposed to exercise a right under
  the procedure
• brought proceedings against the employer, or
  alleged the existence of circumstances which
  would be unlawful

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Indirect Sex or Marital discrimination
Old law s1(1)(b) New Law s1(2)(b)
Definition Requirement or condition, which is applied equally to a man Provision, criteria, practice, which is applied equally to a man
and proportion of women who can comply is considerably smaller than the proportion of men and which would be to the detriment of a considerably larger proportion of women than of men
which employer cannot justify As old law
which is to her detriment because she cannot comply which is to her detriment
Burden of proof On Applicant, (subject to test in case King and Anya) Employer must show non-discriminatory reason for its actions (once applicant has shown facts from which it may be presumed that discrimination has occurred)
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Flexible working - benefits for the employer

• Improved return on accommodation investment
• Increase in performance, productivity and
  profitability
• Reduce the cost of recruitment and reduce
  attrition rates
• Respond to demographic and lifestyle change
• Recruitment aid - Employer of Choice
• PR opportunity
• Compliance

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Benefits for the employee

• Better work-life balance
• Increased personal well-being
• Increased marital/family well-being
• Reduction in stress
• Reduction in commuting time
• Increased creativity
• Increased productivity

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Burden for the employer

• Change
• Culture change
• Behaviour change investment
• Managing clients expectations
• Management time and style
• Trusting the individual
• Technology training

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Burden the individual

• Others attitudes/expectations
• Clients
• Colleagues
• Family
• Promotion
• Workload
• Child care
• Technology

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FLEXIBLE WORKING

The Legal Framework
Anna Kavanagh Time4balance