Employment Alert No. 105 - Flexible Working Requests
August 3, 2005
| What is the Issue? |
A common problem facing employers is when a full-time female employee acquires child rearing responsibilities and then asks to work part-time.
What should an employer take into account when deciding whether or not to accommodate the woman’s request in order to defend a discrimination claim?
| What has been decided? |
This issue was looked at by the Court of Appeal in the recent case of Hardys & Hansons plc. In this case, the employee asked to work part-time on her return from maternity leave. However, during her maternity leave, a reorganisation of the business took place and the employee’s former role was abolished. As a result, the employee was made redundant. The Tribunal accepted that the reason for the employee’s dismissal was redundancy and also accepted that the alternative role which had been offered to the employee could not be done on a part-time basis.
However, the Tribunal decided that the alternative role could have been done by two job-sharers or by two part-time workers and did not accept the employer’s argument that the role comprised certain functions which were incapable of being split between two job sharers.
The Tribunal found that the employer had unlawfully discriminated against the employee on the grounds of her sex by insisting that the new role be performed on a full-time basis and that she had also been unfairly dismissed. The Court of Appeal agreed.
| What does this mean for employers? |
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This case should send a warning note to employers – here, the employer thought it had successfully defended its position, because the Tribunal had accepted its evidence that the job could not be done part-time. However, the Tribunal then went on to evaluate whether the position could be done on a job share basis and found that it could. This case may result in more employees arguing that positions can be done on a job share basis (even though they may not be able to be done part-time).
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If an employer is considering a request for part time work (or other flexible working), it should think about whether the role can be done part-time or on a job-share basis.
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It is not sufficient for employers simply to say that their refusal to allow flexible working is justified on “objective economic grounds” – these objective economic grounds must be proved to the Tribunal. The Tribunal will put itself in the employer’s shoes to consider the business analysis it thinks the employer should have made in the circumstances.
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The Tribunal will assess the seriousness with which the employer approached the feasibility of job sharing. In this case, the employer gave evidence to the Tribunal that the problems were “insurmountable” and that it was not possible for job sharers to work together unless they were “telepathic”. The Tribunal formed the view that the possibilities were insufficiently explored and objections overstated.
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If employees offer to be “flexible”, the employer must properly explore what this entails to try to accommodate the employee.
