Labour introduced the right to request flexible working in 2003 for parents of children under 6 and disabled children under 18. In 2007, they extended the right to cover carers of vulnerable and disabled adults, and last year to parents of all children under 17. The new coalition government wants to extend the right still further to cover all workers.
At its inception, flexible working was viewed by many as a new ‘benefit’ or ‘perk’ of employment. It ended up becoming so popular that most of us now know someone who has requested it at some stage during their career. Indeed, according to latest government figures, 14 million employees currently work flexibly.
But, seven years since the right was formally added to the statute book, is flexible working really all it’s cracked up to be?
Many employees say it allows them to combine a successful career with family life. While employers — well, at least some of them — like it because it means they get to retain valued workers and reduce costs.
Sarah Coles of Moneywise, however, argues flexible working “doesn’t work”. “[T]he truth is the legislation doesn’t give employees that many rights; it simply sets out a procedural framework,” she says. “While there are only a few grounds on which employers can refuse, they are vague enough to cover almost any employee. It means that in many instances those who request flexible working are refused.”
She cites the case of Susan Wade, 37, a manager of a media company in London, who exercised her right to request flexible working last year after the birth of her second child. “I was refused on the grounds that it wasn’t suitable, given my role and the fact there were a lot of changes in the organisation,” relates Wade. “All they had to claim was that it would be detrimental to the business — and that’s a very flexible concept.”
Indeed, this is true; employment tribunals have no authority to question the commercial validity of an employer’s decision to refuse a request for flexible working. Their role is limited to ensuring that employers consider requests for flexible working seriously and in accordance with the statutory procedure.
But where an employer fails to comply with the procedure or unreasonably refuses a request, an employee may be able to resign and claim constructive dismissal. For the claim to succeed, however, the employee will need to show that the employer’s conduct amounted to a serious breach of conduct which left them no option but to resign.
An employee may also be able to claim either indirect or direct sex discrimination.
[Continued in Flexible working: poisoned chalice? (Part 2)]
- Why flexible working does not work (Moneywise)
- Flexible working (Findlaw.co.uk)
- Employment law news (The Solicitor)
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