The World of Work by Harry Sherrard
“Don’t Mention the P Word”
“We don’t want to set a precedent” is a really bad reason for declining a flexible working request.
I was in an employment tribunal in the Midlands recently, acting for a client defending a claim for sex discrimination and failure to apply the flexible working regulations correctly. Although our client had lots of good business reasons for declining the employee’s request to not work at weekends, the manager had said to her at an early stage that allowing her every weekend off would be a precedent that he did not want to set. And boy did this come back to haunt him. On numerous occasions the employee’s representative tried to establish that this was the primary, and true, reason for declining his client’s request. Had he succeeded in persuading the employment tribunal that this was correct, he probably would have won the case.
The flexible working regulations give 8 business grounds on which flexible working requests can be declined, and the bar is not set that high. In most situations the employer can establish persuasive business reasons which fall within one of the 8 grounds. However, “not setting a precedent” is not one of the 8. To rely on this as the reason for refusing is therefore a breach of the flexible working regulations.
Moreover, every flexible working application is individual, and needs to be considered on the merits. It is always much harder to defend a general policy than it is to respond to the specifics of an individual case.
As I have said above, the bar is not set high in establishing that one or more of the 8 business grounds apply. However, where the application comes from the mother of small children, and is made because alternative childcare is not available, this opens up a second, and much more problematic aspect. Women in this situation can claim indirect sex discrimination, in parallel with any claim that the flexible working regulations have not been followed. The employer has a potential defence, known as the justification defence, and here the employer has to work much harder to establish this defence successfully. The tribunal will examine in considerable detail why it was that the employer could not accommodate the employee’s request, for instance by permitting part-time working, job sharing and other similar approaches.
Thankfully we won the recent tribunal case, both in respect of the claim under the flexible working regulations and the indirect sex discrimination claim, but some valuable lessons were learned. As a result of this case we are developing with our client an in-house training course on handling requests for flexible working, vital know-how for all of today’s people managers.
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