Following a recent decision* by the Employment Appeal Tribunal, employers need to ensure that when dealing with flexible working requests, consideration is given to whether there could be a potential claim of indirect discrimination, if rejected.
Brief factual background
The case before the EAT related to the rejection of a request for flexible hours. The employee requested a change in hours because her personal circumstances had changed. This meant that she could no longer meet the working hours set by the employer. She was required to work at least 50% of her rosters and weekends. The change in her personal circumstances was that she had separated from her partner. This resulted in her being a single parent with three children to care for. The claimant’s flexible working request was rejected and she brought an indirect sex discrimination claim.
The tribunal and the EAT found that the employee had been indirectly discrimination against. The question before tribunal was therefore whether the employer could justify the discrimination. An employer can justify a potentially discriminatory PCP (provision, criteria or practice) if it can show that the PCP was a proportionate means of achieving a legitimate aim.
In this case the EAT reinforced the principle that when assessing whether a PCP can be justified by an employer, the tribunal is required to weigh up the employer’s legitimate business needs against the discriminatory effect of the PCP. This is because an employer must be able to show its PCP to be proportionate.
As such it is important that employers are alive to potential indirect discrimination claims before making any final decisions on flexible working requests.
How to deal with flexible working request
Ensure that the time frames under the statutory flexible working scheme are met. The employer must notify the employee of its decision, including any appeal outcome, within 3 months of the date of the request. The employer may have longer if the parties agree.
Deal with the request in a reasonable manner
There is no legal definition of what “reasonable manner” means. However, the Acas Code gives guidance on the process to be followed. This includes (1) discussing the request with the employee as soon as possible following receipt of the request. (2) Allowing the employee to be accompanied at the meeting. (3) Confirming the decision to the request in writing, and (4) offer a right of appeal.
Reviewing the request
Consider whether the employee has complied with the statutory process in making the request i.e. is the employee eligible to make the request under the scheme. If not, failure to meet the eligibility requirements under the scheme could be a reason used to reject the request. Or if there are any technical flaws in making the request (such as it not being made in writing) again this can be used as a reason to reject the request. However, there is danger in rejecting a request on eligibility grounds or for procedural failings due to the risk that the employee may have a potential discrimination claim. It would therefore be better for the employer to also look to rely on one or more of the statutory legal reasons for rejecting the request.
Also use this opportunity to consider whether the facts and reasons surrounding the request would potentially give rise to a indirect discrimination claim. Relating to for example sex, age, disability, religion etc. If there is a risk that it would, then consideration needs to be given to whether the potential discriminatory effect of the relevant PCP could be justified, if the request is rejected.
Rejecting the request on statutory grounds
There are certain statutory grounds that can be relied upon to reject the request. These include:
• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to re-organise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.
The regulations suggest that selecting a statutory ground is a subjective assessment. As such, if the employer considers one of the grounds as relevant, then this test is likely to be satisfied for the purposes of rejecting the request.
However, this does not mean that any one of these grounds would in itself justify a potential indirect discrimination claim following the rejection of the request.
Indirect discrimination – justification?
If there is a risk of a potential indirect discrimination claim, then the employer should take the time to assess whether the legitimate business needs it is seeking to rely upon (whether statutory grounds for flexible working or otherwise) outweighs the discriminatory effect of the PCP.
Such an assessment should include an exploration of all the possible alternative options of achieving the needs of the business without the need for the PCP.
If you require legal assistance with dealing with a flexible working request or if you require any further assistance, please call us at Jordans Solicitors on 0330 3001103.
*XC Trains Ltd –v- CD and Aslef & Others