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Before an employer responds, the request must be given careful consideration to minimise the potential of successful indirect sex discrimination claims under the Sex Discrimination Act 1975 (the 1975 Act) and/or claims that the employer has not complied with its obligations in relation to a flexible-working request in breach of the Employment Rights Act 1996 (a flexible-working claim).
Hardys & Hansons Plc v Lax
The Court of Appeal recently considered a claim of indirect sex discrimination under the 1975 Act brought by L who had asked her employer if she could return to a job share after her maternity leave. Her employer rejected this request on the basis that the job in question could only be performed on a full-time basis because of the number of disadvantages to the job being done on a job-share or part-time basis.
Employment tribunal
The issue for the employment tribunal was whether the refusal to permit L a job share amounted to unlawful indirect sex discrimination contrary to the 1975 Act.
It was accepted that women are less likely than men to be able to comply with a requirement to work full-time, due to their childcare responsibilities. Imposing a requirement to work full-time would constitute indirect sex discrimination against L, unless the employer demonstrated that the requirement for the post to be performed full-time was justifiable irrespective of the sex of the person filling the role.
The employment tribunal rejected the employer's argument that the decision to turn down her request was justifiable and upheld L's complaint of unlawful indirect sex discrimination. This decision was upheld by the EAT.
The employer appealed the decision on the grounds that the wrong test had been applied and that the employment tribunal needed only to consider whether or not it was satisfied that the employer's view, that the job could only be performed full-time, was within a range of views that were reasonable in the specific circumstances of the case (in the same way that a tribunal must consider whether a decision to dismiss falls within a reasonable range of responses in an unfair dismissal case).
The Court of Appeal rejected this approach holding that an employment tribunal must instead assess whether the employer can objectively justify the requirement to work full-time, weighing the real needs of the employer, expressed without exaggeration, against the discriminatory effect of the employer's requirements. It must make a critical evaluation of the employer's working practices and business considerations, taking into account the systems of work, the feasibility or otherwise, and the practical problems that may or may not arise from job sharing and the economic impact of the arrangements.
On the facts, L's claim of indirect sex discrimination succeeded.
Flexible-working requests and claims
After the events of this case, in April 2003, a new statutory regime came into force that allows employees with at least six months' continuous employment, who have children under the age of six, to make a written request for flexible working arrangements to be put in place.
Where a request for flexible working is made in accordance with statutory procedure set out in the Flexible Working (Procedural Requirements) Regulations 2002, an employer has the right to refuse the request only in the event that one of the following business reasons for the refusal applies:
- the burden of additional costs;
- the detrimental effect on the ability to meet customer demand;
- the inability to reorganise work among existing staff;
- the detrimental impact on quality;
- planned structural changes;
- the detrimental impact on performance;
- the inability to recruit additional staff; and
- insufficiency of work during the periods the employee proposes to work.
A flexible-working claim may be brought in the event that there are procedural or factual defects in relation to the flexible-working request.
Where a claim succeeds, the employment tribunal may make an order for the employer to reconsider an application for flexible working. In addition, compensation of up to eight weeks' pay capped at the statutory maximum (currently £280) may also be awarded. Although compensation in relation to a flexible-working claim under the Employment Rights Act 1996 is limited and the commercial validity of an employer's decision cannot be questioned, the scope of an indirect sex discrimination claim is much wider.
An employee is always likely to consider an indirect sex discrimination as a more effective remedy where a request is denied. It is therefore imperative to create a paper trail to confirm careful consideration of a flexible-working request and the employer's objective justification for a refusal.
When faced with a flexible-working request, employers should carry out a thorough assessment of the possibility of accommodating the employee's request either in part or in full, assessing the impact on current working practices, colleagues, client requirements and so on. As part of this analysis the following should also be taken into consideration:
- the size of the employer;
- the balance of additional costs and other working difficulties incurred when making arrangements to accommodate an employee compared to the benefit to the employee;
- the cost of training and replacing an employee;
- the nature of the employee's duties; and
- any requirement for management continuity and customer needs.
It is advisable for several members of management to consider the application to ensure careful and impartial consideration. If part-time or flexible-working arrangements are provided for a short-term period only, the rationale for the limitation should be clearly recorded. It should be borne in mind that the obvious influence will be that if the working arrangement can be accommodated on a short-term basis, this could surely be continued into the future.
Only if a thorough evaluation is carried out before a request is rejected will the employer be in a reasonable position to defend a claim of indirect sex discrimination. One of the problems that L's employer faced was that the tribunal considered that the evidence of its witnesses, that the job could not be performed on a job-share/part-time basis, was greatly exaggerated and that little thought had been given to other means of accommodating some of the perceived difficulties, for example introducing the concept of handover notes and compiling a central database of information that could be accessed by all job sharers.
Finally, if homeworking is agreed to, note the requirement to comply with risk assessments and visual display units training under the management of Health and Safety at Work Regulations 1992 and the Health and Safety (Display Screen Equipment) Regulations 1992.
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