Employment

At the moment, the majority of those who ask for flexibility at work are women – mainly to deal with childcare. That is changing. The introduction of shared parental leave both responds to and promotes a new approach to the division of childcare responsibilities. Protected groups such as those with particular religious faiths, disabled or older workers may also make more use of the right to request flexible working in the future. To add to this, a range of factors outside of the law – technology in particular – are affecting the way in which employees want to work. You can’t ignore the pattern.

But how easy is it for employers to keep up with this – and match it to the needs of their organisation? We often get questions about how to balance interests amongst employees with families and between those with well-established access to flexibility and the new categories of applicant e.g. older workers. And how do you ensure that any preferential treatment given to those with families does not result in an additional burden on those who do not? Is it possible to tackle all of this, but still maintain a positive perspective?

Refusal of an application for flexible working from someone in a protected group could create exposure to a claim that the reason is discriminatory. There is no obvious pecking order if applications are made for reasons relating to a protected characteristic such as disability or pregnancy. An application to accommodate childcare responsibilities, for instance, won’t automatically ‘beat’ an application from someone who needs the flexibility for medical reasons. Strictly speaking, someone with protected rights does not get automatic preference if he or she makes an application at the same time as someone without, but again, if your reasons for separating the applications could be discriminatory (intentional or unintentional), risks do arise. ACAS suggests that employers should not apply value judgements when managing competing requests. Easier said than done.

In reality I am not sure how often direct conflicts arise, but it makes sense to think ahead and have a process for responding. There are some legal concepts that you can apply to decision-making that might help. Call it ‘informed’ common sense. The statutory rules on flexible working contain a list of reasons for rejection and they correspond to factors that might constitute an objective justification for refusal of a request that might otherwise be discriminatory.

  • the burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to reorganise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; or
  • planned structural changes.

Fleshed out, these are most often used to deal with a conflict between the commercial interests of a business and the rights of an individual, but they should also help when distinguishing between employees with competing interests. Can you, for instance, create a preference based on the needs of the team that the applicants work in; their particular skills (documented); or their location/home set-up?

A structured approach is also useful.

  • Work out what the conflict actually is in order to establish whether it is simply perceived or really exists.
  • Can the conflict be resolved by applying neutral criteria – not related to the characteristics of the individuals (e.g. first come, first served)?
  • If not, then there should be an attempt to distinguish between the applications using criteria that may be personal, but ‘neutral’ in relation to sex, race etc. – and directly relating to the business drivers that form part of the normal refusal criteria.

And some tips for your policy on flexible working:

  • Make sure that it contains a positive statement about the concepts – it creates the right context for an open and honest debate about a request.
  • Use the policy to educate your managers – explain that they are not expected to mediate between different groups with competing rights – they are entitled to look at the issue from a commercial perspective.
  • Include a mechanism for resolving conflict/disputes.
  • Encourage the use of good resource planning techniques to set out the optimum approach to flexible working within a team or area – provided you keep it under review it could help you to prioritise applications.

Joan Cradden

Partner at Brodies LLP
Joan is a partner at Brodies and is leading and managing the firm's employment team. She is an experienced litigator and has specialist expertise in TUPE, International and European employment law, discrimination, contracts, policy drafting and industrial relations.
Joan Cradden