When an employer wants to reject a request for flexible working, they often give a great deal of consideration to the reasons set out in the legislation governing such requests. These are:
- 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 that you propose to work; and/or
- planned changes.
However, employers would do well to also remember the more general sex discrimination laws that protect employees. Indirect sex discrimination can occur where the employer applies a provision, criterion or practice (say, the requirement to work on a flexible rota system) to all employees (i.e. both male and female) but that provision, criterion or practice puts one sex at a particular disadvantage (say, females are disadvantaged because they typically have the burden of childcare responsibilities). Unless the employer can show a justification for that discriminatory treatment, it is likely that the discrimination will be unlawful.
A mother has recently won her claim for sex discrimination against her employer when they failed to accommodate her request to work 11 fixed days per month. Her claim under the flexible working regime failed.
Her employer, an airline, operated a flexible rota system (meaning the days of work were not fixed and so she could be required to work any 11 days of the month) and said that they could not agree to her request as it would have a detrimental effect on the business. The employee argued that this was indirectly discriminatory as it placed female employees at a disadvantage compared to male employees. The Employment Tribunal agreed.
So, before rejecting any flexible working request, consider the possible sex discrimination issues as well as the provisions of the flexible working request regime.
An airline employee whose requests for flexible hours were rejected when she returned from maternity leave has won a sex discrimination case against her employers. Emma Seville, who worked for Flybe airline as cabin crew for 13 years, worked full time on a flexible rota – meaning she could work any 22 days in a month – before going on maternity leave. But after having her son, she asked to return to work on a fixed, pre-arranged rota of 11 days a month. Seville had difficulties finding nurseries for her child because of the unusual working hours, the Birmingham employment tribunal heard, and so proposed flexible working or job sharing. Both requests were rejected by Flybe, and Seville appealed the decision internally before taking her case to a tribunal.