Flexible Working and the Law

Guidance for SMEs

While there is no absolute right for any employee to work reduced or non-standard hours in order to fit in with family or personal responsibilities, extensive legislation is now in place which encourages employers to seriously consider requests for such arrangements, and to recognise the valuable contribution made to business by flexible workers.

Over the years Working Families has gathered a wealth of evidence for the business and personal benefits of flexible working arrangements. Some of this information is posted on our website. For more detailed guidance please contact us.

Outlined below are the key pieces of employment legislation which impact on flexible working.

The Sex Discrimination Act (1975)

Under this legislation an employer’s insistence on a standard full time working week can potentially be viewed by an Employment Tribunal as indirect sex discrimination.

It has been successfully argued that, because more women than men have caring responsibilities, and therefore have a greater need for flexible working patterns, a refusal to allow such arrangements is indirect sex discrimination.

In law, indirect discrimination occurs when:

• An employer applies a provision criterion or practice on both male and female employees – for example full-time working or shift working – which puts or would put women at a particular disadvantage and

• The provision criterion or practice disadvantages the woman concerned personally – for example she cannot work full-time/work shifts because of childcare responsibilities, and

• The provision criterion or practice cannot be justified by the employer as a proportionate means of achieving a legitimate aim.

As a result of the case law on indirect discrimination employers now have to look very carefully at any request from a mother with childcare or other caring responsibilities who wishes to change her working arrangements. They must show a clear business reason for refusing. If they cannot justify their refusal they may be found to have discriminated against the woman. Where women in a workplace are allowed to work flexibly then it would be sex discrimination for a man not to be allowed the same rights.

Compensation for successful complaints of indirect sex discrimination can be high.

The Disability Discrimination Act (DDA) 1995

The DDA is a wide ranging piece of legislation which extends the rights of disabled people in relation to employment, goods and services, land and property, educational information and public transport. The employment provisions of the Act came into effect on 2 December 1996.

Definition of disability

• A person is defined as having a disability if "he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

• Where an employee has a progressive condition (e.g. cancer or MS) the employer may need to consult the disabled person at appropriate stages about what his needs are and what effect the disability may have on future employment.

'Reasonable adjustment'

The Act imposes on employers a duty to make reasonable adjustments in relation to a disabled person. This applies where any physical feature of premises occupied by the employer, or where a provision criterion or practice applied by or on behalf of the employer, causes a substantial disadvantage to a disabled person compared with non-disabled people. An employer has to take such steps as are reasonable in the circumstances to prevent that disadvantage.

As a general guideline, the cost of making 'reasonable adjustments' should be at least equal to the cost of recruiting and training a replacement employee. One of the cheapest 'reasonable adjustments' open to many employers is a change in working hours or working patterns for the employee concerned.

You are not under an obligation to make an adjustment if you do not know, and could not reasonably be expected to know, that an employee has a disability likely to place him or her at a substantial disadvantage. Nor do you need to make any adjustment which would breach Health & Safety or Fire legislation.

The Employment Relations Act 1999

Under this legislation:

• All employees have the right to take a reasonable period of unpaid time off work to deal with an emergency involving a dependant. (See also Working Families SME factsheet on Carer Leave.) There is no set limit to the amount of time off which can be taken. This will depend on individual circumstances.

• Parents of children under the age of 5 who have worked for their employer for at least a year are entitled to take unpaid parental leave in the period up to the child’s 5 th birthday. IN the case of adoption, parental leave may be taken at any time prior to the 5 th anniversary of the date the placement for adoption began, or the child’s 18 th birthday if earlier. If a child is disabled parental leave may be taken until the child is 18. Parents are entitled to 13 weeks unpaid leave (18 weeks in the case of a disabled child) and may take a maximum of 4 weeks in any one year.

• Any employee working fewer hours than your full-time staff (even just one hour less) is now deemed a part-time worker and has the right not to be treated less favourably than comparable full-time worker, unless the different treatment can be objectively justified. This right applies both to the terms of the employee’s contract and to being subject to any other detriment by any act or deliberate failure to act on your part as her employer.

Management of Health and Safety at Work Regulations 1999

These regulations came into force in December 1999. They require all employers to conduct a ‘Risk Assessment’ of potential hazards to employees and apply equally to employees working from home.

Fixed-Term Employees Regulations 2002

Since October 2002, fixed-term employees have the right not to be treated less favourably than comparable permanent employees simply because they are fixed-term, unless you can objectively justify the different treatment.

A 'Fixed-term employee' is defined as a person with a contract of employment which is due to end when a specified date is reached, a specified event does or does not happen or a specified task has been completed. The regulations only apply to fixed-term employees having an employment contract directly with your business, they do not apply to agency workers.

The Employment Act 2002

• Under this legislation, parents of children under 6, or of disabled children under 18, have the right to make one application in any twelve month period to request to work flexibly and to have their request considered seriously by their employer - provided they have worked with that employer for at least 26 weeks at the date of application and are making the application to enable them to care for a child.
  
  They are able to request:

• A change to the hours they work.
• A change to the times when they are required to work.
• To work from home.

More information about responding to such requests can be found in the Working Families SME Website guidance page: Responding to the Right to Request Legislation. Note that the Right to Request is likely to be extended to carers in April 2007.

• A further provision of the Act requires all employers, however large or small, to have both a disciplinary procedure and a grievance procedure. While this may not have an obvious relevance to flexible working, it is good practice to both have a clear procedure for addressing any perceived abuses of flexible working arrangements; and a procedure whereby employees may appeal against what they believe to be an unfair response to a request for flexible working arrangements (an appeal process is required under the Right to Request procedure).

The Employment Equality (Religion or Belief) Regulations 2003

These regulations make it unlawful on the grounds of religion or belief to:

• Discriminate directly against anyone. That is, to treat them less favourably than others because of their religion or belief;

• Discriminate indirectly against anyone. That is, to apply a criterion, provision or practice which disadvantages people of a particular religion or belief unless it can be shown to be a proportionate means of achieving a legitimate aim.

The regulations do not say employers must provide time and facilities for religious or belief observance in the workplace. However you should consider whether your policies, rules and procedures indirectly discriminate against staff of particular religions or beliefs and if so whether reasonable changes might be made.

Many religions or beliefs have special festivals or spiritual observance days. A worker may ask to take holiday in order to celebrate festivals or attend ceremonies. You should sympathetically consider such a request where it is reasonable and practical for the employee to be away from work, and they have sufficient holiday entitlement in hand. Conversely, a benefit for you might be that such a worker is happy to work on a traditional ‘Bank Holiday’ – extending your business hours if appropriate – since the festival in question is not one observed by his/her religion.

More comprehensive information about all the legal provisions outlined above can be found at the DTI’s website www.dti.gov.uk

A Factsheet of this nature can only provide general guidance. It should not be used as a substitute for independent legal advice. While every effort has been made to ensure the accuracy of its content, we cannot be held responsible for any errors.

June 2006

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