Even if an individual is engaged on the “standard 9 to 5” contract, such a person may have the right to request a change to their working hours. In terms of the flexible working legislation, certain employees have a statutory right to request a variation to terms and conditions of employment in respect of working hours, working time or working from home, i.e. employees with certain child caring responsibilities, but there are proposals to extend the right to other staff. The legislative framework does not provide employees with the right to work flexibly. Instead it provides employees with the right to make a request to work flexibly and places employers under a duty to consider a request. There are only limited (albeit wide ranging) business grounds which entitle an employer to refuse a request. Failure by the employer to follow the appropriate procedure on receipt of a flexible working request could result in compensation being payable. The maximum compensation payable in respect of a failure is currently 8 weeks’ pay. The upper weekly limit (currently £290) applies to this award. At present, the right to ask to work flexibly is only open to employees with certain child caring responsibilities, but there are proposals to extend the right to other staff.
This legislation does not however exist in a vacuum and can be used by employees alongside other rights, such as sex discrimination. If it can be shown that the issue in question adversely affects more of one sex than another, there is a real risk of an indirect sex discrimination complaint. For example, requiring employees to work 9 to 5 could potentially be seen as indirectly discriminatory since fewer women than men may be able to comply with this requirement due to child care responsibilities. The employer would be required to objectively justify any less favourable treatment. As there is no limit on the amount of compensation an Employment Tribunal can award following a successful sex discrimination complaint, employers should ensure that all requests to change working hours are treated carefully. If such requests are to be refused, the business should ensure that there is objectively verifiable evidence justifying such a refusal.
The working pattern of employees is changing and there are many different working arrangements which can be put in place. Employers need to consider carefully the implications of such working arrangements to ensure that the risk of any claims arising is minimised whilst the business needs are fully protected.
(Information posted in June 2006 and may not have been updated at time of reading).