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Do Employees Have A Right To Work Flexibly?

Duncan McFadzean, one of our Directors and an Employment Law specialist, discusses this question which has become more and more relevant to all kinds of employees.

The short answer to the question is “no”, but there is more to this than meets the eye!

What is the right?
For a number of years employees have enjoyed the right to make a request to their employer for Flexible Working under the Employment Rights Act 1996. Until recently the right was restricted to requests which would assist employees with their caring responsibilities, for example to have time off or different working hours to allow them to care for their children. UK law has now become more progressive in favour of employees in that Flexible Working requests can now be made for any reason, meaning that if an employee wishes to arrange their life and schedule in a certain way they can apply to their employer for changes to their terms and conditions to allow them to do that. Again, the manner in which terms and conditions can change can relate to the number of hours worked, the timing of the hours worked, or even the location of the work. An employee might apply to do more of their hours from a base close to home, or from home itself. This can be of great benefit to employees in a number of situations, and employers can also benefit through the retention of good staff who may otherwise not be able to continue in the role, good productivity, improved morale etc.

Only a right to “request”
However, it remains the legal position that what employees enjoy is a right to request Flexible Working, not necessarily for their request to be granted. On receipt of a Flexible Working request the employer must deal with this in a “reasonable manner”, for example by fixing a meeting with the employee to discuss the request, clarify any potential issues, and discuss possible alternatives, but at the end of the day the employer is given a list of statutory grounds upon which Flexible Working requests may be refused. These include the burden of additional costs, a detrimental effect on ability to meet customer demand/quality/performance, and an inability to re-organise work amongst existing staff or recruit additional staff. If an employer refuses a Flexible Working request on one of the statutory grounds in good faith then it remains difficult for employees to challenge the employer’s decision, at least under the Flexible Working laws.

But there are other stronger legal remedies…
However, that is not the end of the story, and employees should not lose all hope! In addition to the Flexible Working laws there are other areas of Employment Law which can come into play in respect of Flexible Working requests, and in reality these other areas of Employment Law have more teeth. The law relating to Sex Discrimination under the Equality Act 2010 can often be highly relevant in Flexible Working situations. Clearly if an employer allows male employees time off to pursue personal interests but does not do the same for comparable female employees, this may amount to direct Sex Discrimination. Perhaps more commonly, if an employer applies a general rule to a role, for example that the role must be carried out on a full time basis, and this places females at a disadvantage to males (which it can because it remains the case that more females wish to work part time to allow for child care) then this may amount to indirect Sex Discrimination where the employer’s rule cannot be shown to be a “proportionate means of achieving a legitimate aim”. To put it more simply, if in reality the employer should be able to make arrangements to allow an employee to work part time to allow for child care without damaging the employer’s business, then the Equality Act can require the employer to allow Flexible Working. If the employer fails to do so and the employee is left having to give up the job, the value of a compensation claim under the Equality Act can be high: this can include compensation for lost earnings while the employee looks for a comparable and suitable job elsewhere which will take into account her need to work flexibly, and a damages award for injury to feelings caused by the employer’s treatment.

The more traditional laws in relation to constructive unfair dismissal can also be relevant to Flexible Working applications. For example, if an employer grants one employee’s request but then refuses another’s without good reason, this can allow the employee to argue that the employer has behaved in a manner which is likely to seriously damage or destroy trust and confidence. The same can be said of a situation where the employer refuses a Flexible Working request on grounds which are false or cannot be substantiated. If the employer breaches the “trust and confidence” obligation, and the situation is not remedied, the employee may be left resigning and making a constructive unfair dismissal claim, again with potentially significant compensation being awarded by the Employment Tribunal. Of course, employees should always take legal advice before resigning!

Conclusion – the law is certainly supportive of certain categories of employees
All of this demonstrates that while the Flexible Working rules in themselves are not particularly strong from an employee’s perspective, Employment Law as a whole does give significant rights to employees who wish to work flexibly. This is particularly the case where that wish stems from matters such as having a child, caring for a family member, having a disability, or religious commitments.

Where does this leave employers?
That said, employers should not be too downbeat about this situation. The law does not go so far as to force employers to take steps which are not viable for their businesses – an element of common sense remains, and while the law is complicated this is an area in which it is quite fairly balanced.

How can we help?
At ELP Arbuthnott McClanachan we have a specialist Employment Law Practice which specialises in advising employees and small to medium sized businesses on all aspects of Employment Law including the making of Flexible Working requests and how to deal with them. If you have any queries on Employment Law matters we are always delighted to discuss these with you by telephone on a no obligation basis. You can call us at our Ferry Road and Davidsons Mains offices on 0131 554 8649, or email us at employmentlaw@elpamsolicitors.co.uk.

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