Flexible working cases show employers can say 'no'

Employees returning from maternity leave commonly request flexible working. Agreeing to changes may cause detriment to the business but refusal risks a legal claim; what should employers to do?

Legal background

Employees with at least 26 weeks' continuous service have the right to make a request for a permanent contractual variation to enable them to work 'flexibly' (section 80F, Employment Rights Act 1996).

Flexible working encompasses an open-ended range of arrangements from shorter hours to term-time working to job sharing or working from home.

The right is available to all eligible employees, not just parents or carers (as was previously the case). However, the right is commonly exercised in the context of an employee returning from maternity leave.

Previously there was a prescriptive statutory procedure which an employer needed to follow in considering such a request, however, since June 2014 this has been swept away and an employer is only required to deal with an application 'in a reasonable manner', within a three month time limit (which may be extended by agreement).

ACAS has published a statutory Code of Practice on handling requests to work flexibly. Employment tribunals must take into account the ACAS guidance when considering relevant claims.

The legislation permits an employer to refuse a request on one of eight business grounds. A request may only be refused on one of these grounds. The ACAS Code provides best practice examples relating to the eight business reasons for which an employer can reject a flexible working request.

Even if an employer is not in breach of the flexible working legislation in refusing a request, there is still the risk that an employee who has been refused a requested contractual variation could bring an indirect sex discrimination claim.

Employers therefore need to consider the wider legal landscape when dealing with such requests, whether made formally, under the section 80 procedure, or informally.

Understandably there has been a feeling among employers that refusing a flexible working request (FWR) from a woman returning from maternity leave was a risky thing to do. However, two employment tribunal decisions may help to alleviate these concerns.

Whiteman v CPS Interiors Ltd and others

Ms Whiteman, a designer, made a FWR while on maternity leave, seeking to reduce her hours, work from home (save for the occasional office visit) and carry out her work after 6:00pm.

Her employer had reservations, and while it was prepared to agree to reduced hours, it could not accommodate the home working request because:

• The company's collaborative way of working involved designers getting together in a room to look at technical designs; and
• designs often had to be changed at short notice, which would be difficult if a team member worked at home during the evenings.

Ms Whiteman brought a claim for breach of the flexible working legislation, which was rejected.

The tribunal stressed that there is no right to work flexibly, only a right to request flexible working and to have that request dealt with in a reasonable manner. The tribunal emphasised that an employer is entitled to run its business as it sees fit; provided an employer follows the ACAS Code on handling FWR's, and their approach is not discriminatory, an employer is free to reject a request based on one of the grounds specified in the legislation.

Smith v Gleacher Shacklock LLP

Ms Smith worked as an Executive Assistant in a small investment banking firm, and while on maternity leave made a FWR to change her hours from full-time to working three days per week in the office, working at home on Thursdays, and not working Fridays.

Her employer rejected her request for a number of reasons, including the impact it would have on the firm's ability to look after its clients, and the disproportionate pressure it would place on others in the small team.

Ms Smith brought a claim for breach of the flexible working legislation which was rejected because the tribunal considered it did not have the power to interfere with an employer's business judgment.

Her claim of indirect sex discrimination was also rejected, with the tribunal reasoning that the provision, criterion or practice (PCP) in question - the requirement that roles such as Ms Smith's be carried out full-time by one employee - did not place her at a particular disadvantage as the demands on her time and energy were pressures felt by many working parents.

What does this mean for employers?

To some extent these examples lessen the pressure on employers as they demonstrate that FWR's from employees returning from maternity leave can be rejected, with tribunals unlikely to interfere with an employer's considered and reasoned judgment in making these decisions, as long as this can be evidenced.

However, the potential to be indirectly discriminatory on the grounds of sex when considering a FWR should remain at the forefront of an employer's mind. If an employee is able to show that a refusal to allow flexible working is likely to cause a particular disadvantage to one gender group in comparison to the other, and that the claimant personally suffered that disadvantage, a tribunal will find the decision discriminatory unless the employer can objectively justify it (in effect, establishing that there was a genuine business reason for it).

Top tips for dealing with a flexible working request include:

• providing a response (including any appeal outcome) within the three month time limit; 
• dealing with requests in a reasonable manner (the ACAS Code of Practice provides useful guidance on what that looks like); 
• ensuring that any reasons for refusing the request fall within at least one of the specified reasons; 
• keeping an open mind and challenging any policy that particular roles can only ever be done on a full-time basis; 
• if there are genuine business reasons why flexible working is not feasible, make sure these are properly evidenced and documented and not just based on the personal preference of managers; 
• note that an argument that 'we already have too many people who work part-time/from home etc.' is not, in itself, one of the permitted grounds for refusing a request; 
• consider whether a trial period could be offered to settle any concerns about the requested working pattern; 
• even if you can't offer the exact changes requested, think creatively and see if you can suggest a compromise arrangement; 
• bear in mind the risk of indirect sex discrimination at all stages of the process.