A recent case involving British Airways has highlighted some of the difficulties for employers in flexible working arrangements. The case demonstrates that mistakes can be made even by large employers, leading to costly claims and giving rise to damaging publicity. Employers, both large and small, can draw a number of valuable lessons from this to avoid some of the pitfalls.
Jessica Starmer, a pilot with BA, made a flexible working request to reduce her hours to 50% allowing her to care for her one year old daughter. Her request was rejected for, among other things, the consequent ‘burden of costs’ that granting the request would have on BA. Both the Employment Tribunal and the Employment Appeals Tribunal found in favour of Ms Starmer. They found that the refusal of the request was a breach of the Flexible Working Regulations and BA was found guilty of sex discrimination. Ms Starmer won her case.
The legal framework for this case is principally contained in the Flexible Working Regulations. Since the Regulations were introduced in 2002, the take up for flexible working both by employers and employees has been much higher than expected. The Regulations do not assert a right to flexible working but they do provide a legislative framework to be followed when considering these requests. The Regulations only provide for requests to care for a child under six. If employers do not follow the correct procedure in dealing with such a request they may be fined up to eight weeks' pay. Refusing such a request could also be an act of indirect discrimination, which attracts an uncapped award.
What lessons can be learnt?
Firstly, despite flexible working having been with us for some time now, employers are still getting it wrong. Many of the mistakes are due to the reluctance of line management to constructively consider requests.
The BA case illustrates the importance of selecting the most appropriate statutory reason upon which to refuse a request. Employers should be careful when relying on ‘burden of costs’ as the statutory reason. Employment Tribunals commonly treat this reason with scepticism, particularly for large employers.
Most significantly, the case demonstrates the importance of avoiding the adverse publicity flowing from mistakes. Even if an employer is subsequently vindicated on appeal this often only merits a two liner in the law supplement. The real damage is done through vilification by the press in the aftermath of the initial, unfavourable Employment Tribunal finding.
What does the future hold?
The Government is committed to family friendly policies and is proposing to extend the right to request flexible working to those who need to care for dependants. In the meantime, whilst the current Regulations only cater for requests to care for a child, in practice, requests are being made and granted for a constantly expanding plethora of reasons. Even if the legislative framework does not cater for such requests, it is still worth considering them reasonably to avoid any adverse impact on staff retention and employee morale.
For the full article, first published in Employers Law, please go to the employment knowhow page www.speechlys.com/employment_knowhow and click on the link to ‘Flexible Success’.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
