first_imgAt a glance guide to flexible workingOn 1 Apr 2003 in Personnel Today Comments are closed. Previous Article Next Article Related posts:No related photos. Heather Falconer outlines what you need to do to comply with the new legalduty to consider requests for flexible workingWhat are your duties on flexible working under the Employment Act 2002? From 6 April 2003, employees with children under the age of six or disabledchildren under 18, and at least six months’ service, will have the right torequest the hours, times and places they work to enable them to better fulfiltheir responsibilities towards their children. The law does not put the employer under an absolute duty to agree to therequest, but says they must consider the request seriously, hold a meeting withthe employee if you intend to refuse, and put the reasons for refusal inwriting. Even then, the employee can take the matter further – ultimately totribunal, if they so wish. The detailed steps the employer must follow are set out in the FlexibleWorking (Procedural Requirements) Regulations 2002 ( what grounds, and how, can we refuse if it doesn’t fit in with thebusiness? If you refuse the application, you must state which of the grounds forrefusal specified in section 80G (1) (b) of the Employment Rights Act 1996apply. Permitted grounds are currently: 1 The burden of additional costs 2 A detrimental effect on the ability to meet customer demand 3 An inability to reorganise work among existing staff 4 An inability to recruit additional staff 5 A detrimental impact on quality 6 A detrimental impact on performance 7 Insufficient work during the periods the employee proposes to work 8 Planned structural changes You are then required to give “sufficient explanation” of thegrounds for refusal in the particular case. The Government does not give muchguidance as to what sufficient means, though it suggests a “couple ofparagraphs” will usually be sufficient. But common sense dictates that the more thorough the explanation, the morechance the employee will not appeal against the decision or wish to take itfurther. Bear in mind that in the event of a appeal, the tribunal will be empoweredto make a judgement about the sufficiency of the explanation given. Is it possible to extend the time periods specified in the regulations? Only if the employee agrees to this. If they do, you must record thisagreement specifying which period is being extended and the date of the newtime limit. This should be dated and a copy sent to the employee. Might we have to justify our refusal of a flexible working request to atribunal? Under the new law, tribunals will not have the power to question the employer’sreasons for declining a request, as long as it has followed the correctprocedure and given sufficient explanation of the business reasons. However,there is a strong likelihood that staff wishing to challenge their employer’srefusal in court will bring not only a claim under the Employment Rights Act1996, but also a claim under the Sex Discrimination Act 1976. Women, who are more likely to take advantage of the new right than men, willbe tempted to bring a claim of indirect sex discrimination. In this case, theemployer would have to satisfy the tribunal that its refusal to allow therequest was justifiable, irrespective of the employee’s sex. This test is decided by objective standards and will allow the tribunal tochallenge not just the employer’s procedure, but also the reasons for refusal. Even more worryingly, the employer defence for indirect discrimination willchange in 2003. Employers will have to show not only that their refusal toallow flexible working was objectively justified, but also that it was aproportionate means of achieving a legitimate aim. This will leave much more scope for tribunals to question the reasonablenessor otherwise of the employer’s refusal. They will be able, for example, toconsider alternative ways in which the employer could fulfil its staffingneeds, rather than requiring a particular employee to work full-time from theoffice. So while following the procedures correctly will help the employer defendsex discrimination claims, it certainly will not be enough in all cases. Itwould be wise to make sure you have considered all the options and alternativesbefore turning down a request. Ask yourself if requiring the person to workfull-time in the office is reasonable in all the circumstances. Could men use the law to push us into offering them flexible working? Certainly, it would be impossible for a man to claim indirect discriminationas this would depend on arguing that men as a group lose out by having to workfull-time standard patterns – given current social and economic trends, such anargument would not get very far. However, there have been cases where men have succeeded in claiming directdiscrimination under the Sex Discrimination Act. This involves demonstratingthat they have been treated less favourably than a comparable female workerwould have been in the circumstances. Action points…Ensure your business is equipped to deal consistently andfairly with requests for flexible workingDevelop a response to the new law as part of a wider policy onflexible working and ensure it is communicated effectively to staff, and thatmanagers are comprehensively trained Review your practices, policies and procedures for anythingthat might be deemed to be indirectly discriminatory under the new, widerdefinitionConsider whether these practices are a proportionate way ofachieving a legitimate aimThe complete guide to flexible workingThis article is adapted from the new one stop guide to flexible working,published by Personnel Today Management ResourcesThe guide is designed to– Save you hours of research time by pulling together all you need to knowin one place– Offer a step-by-step guide to developing employee-centred flexible workingarrangements that benefit employer and employee alikeOrder your copy on 01371 810433 and turn to px for more informationPrice at only £95 & p+p available nowlast_img read more