How to negotiate with employees and avoid problems

By Palmer Wade, discrimination and employment law specialist solicitors

"If only my employer had a full and open discussion with me and considered my request properly I would not be here today."

"From the beginning they had made up their minds not to allow flexible working."

These are common refrains by employees who end up in the tribunal.

Most employees only bring a tribunal claim as a last resort. They feel they have been treated badly – because, for example, their application to work flexibly has not been properly and genuinely considered. They want justice and to avoid another employee being treated in the same way. Since a financial award in a tribunal seems the way to achieve justice, the battleground is laid.

Remember

The refusal of a request under the Right to Request Flexible Working procedure may be lawful BUT this may still lead to a Tribunal claim for indirect sex discrimination under the Sex Discrimination Act and unfair dismissal. If successful, there may be a substantial award of compensation. Even if a claim is unsuccessful, litigation is expensive, time consuming, and to be avoided. It is rare for a party who loses to be ordered to pay the other’s costs.

Some Dos and Don'ts when negotiating

1. Do set up a procedure for considering flexible working applications and make sure that it is clear and accessible to all employees. Be sure to read the DTI guidance to make sure that the procedure complies with the statutory requirements.

2. Do make sure that all managers and staff are aware of the procedure and are trained so that they know how it works. Employers with good policies which they understand and follow are less likely to find themselves in a tribunal. Don't dismiss your employee or treat her/him less well because s/he has asked for flexible working.

3. Do treat the application seriously and positively by considering carefully whether it is workable. This may involve discussions with other staff, particularly those who work with the employee and so know her/his day to day work. Don't make assumptions that, for example:
   - if one person wants flexible working, everyone will want it or
   - that it will be resented or
   - that clients will mind if the employee is not available all the time or
   - it didn’t work last time.
   The law does not allow an employer to refuse flexible working on these grounds.

4. Do treat men and women in exactly the same way. Many women want to work full-time and some men want to work part-time. Treat people as individuals, value their unique circumstances and ensure they have equal access to flexible working. Don't generalise by assuming that women want to work particular hours but men do not. This may be discriminatory.

5. Do hold a face to face meeting – not a telephone conversation. Don't make up your mind before hearing what the employee has to say. Consider whether a compromise may be possible and discuss other possibilities. Consider a trial period to see if the arrangement will work This can be done under the “Right to Request” procedure by adjourning the meeting called to consider the request.

6. The law only allows you to refuse a request for clear business reasons. Don't say that the reasons given are 'just phrases, which should be ignored'. Don't give business reasons unless they can be substantiated. Although they cannot be challenged under the “Right to Request” procedure, they can in a discrimination claim so, to be safe, a request should not be refused unless there is a clear business need to say no.

7. Do make contemporaneous notes of meetings and agree them with the employee afterwards; record the outcome in a letter to the employee.

8. If you need advice do speak to ACAS or the EOC or visit the EOC’s website or the DTI website

9. If threatened with a tribunal, claim do try to resolve the situation as quickly as possible. Defending a claim will be expensive and very time consuming. Do rely on your contemporaneous notes and letters, since if you are accused of being economical with the truth this can seriously harm your defence.

It’s all just common sense.

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