· 2 min read · Features

Flexible working: Legal view - Know your rights


From next month more people will have the right to request to work flexibly. Employers still don't have to say yes, says Matt Jenkin, but they need to have solid grounds for saying no.

The extension of the right to request flexible working to parents with children aged up to 16 will lead to an increase in flexible working applications. But just how many more will be made is still up for debate, particularly now we are in a recession (see research feature, p10).

The right as it stands applies to some six million employees. When the Government was consulting on an extension, it estimated that giving the right to parents of children aged 18 or younger would benefit a further 4.5 million employees. As we know the extension hasn't quite gone this far but it will still mean a significant number of additional employees will now be able to make a request for flexible working.

Flexible working has been one of the most successful of the Government's family-friendly measures and many employers have embraced the concept, recognising the benefits it can bring. With that in mind the extension is likely to be one that employees seek to use.

The current economic climate is likely to have an impact on flexible working requests. There was some indication from the Government that the extension might be postponed given the downturn. This has not happened and the changes are still going ahead. Nonetheless there are bound to be some employees who take a view that now is not the time to rock the boat and decide they are content to continue with current working arrangements.

Even if the current economic climate does not see a reduction in flexible working applications, it is bound to have an impact on how employers respond to such requests. Employees have a right to request; they do not have an automatic right to work flexibly. Employers will start to take a harder look at applications and it is likely there will be an increase in the number of requests being rejected.

Downturn or no downturn, employers must stay within the law. They will still have to ensure requests are dealt with in accordance with statutory requirements. Compared with other employment procedures the request procedure is basic and so there should be little excuse for employers failing to follow the right steps.

For those employers who want to refuse the request then the April changes will not affect the grounds for rejecting applications. These remain: 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; insufficiency of work during the periods the employee proposes to work; detrimental impact on performance; and planned structural changes. Most employers should be able to justify refusal using one or more of these categories.

While compliance with the procedures should be straightforward (and the penalties for non-compliance limited) employers should still deal with requests thoroughly and on their merits. The bite for those who refuse a request is the potential for claims of sex discrimination and the exposure to significant awards of compensation that are not subject to any cap. In particular, tribunals readily accept the argument that women have a greater burden of childcare. A policy requiring that a job be performed on a full-time basis only could be seen by a tribunal as having a disproportionate impact on women and would amount to indirect sex discrimination unless the requirement for full-time working could be objectively justified. I think we will see a significant increase in this type of claim; this will be the hidden cost of the extension to flexible working.

Employers looking to avoid such claims will need to ensure proper consideration is given to each request on a case-by-case basis. Any decision to refuse a request needs to be objectively justified and the reason behind any decision should be recorded for use in the event of a claim.

Certainly in light of the extension to flexible working coming into force next month, employers should be anticipating that more requests will be made and should review their current approach to dealing with them to ensure that it will stand up to scrutiny.

Matt Jenkin is head of the employment team at Morgan Cole