All employees who have worked for their employer for more than 26 weeks have a statutory right to ask for flexible working and the reason for such requests is not confined to those relating to children and child care but can include everything from a desire to volunteer to more time to walk the dogs. However, the more typical scenario is a mother returning from maternity leave requesting to work part time hours rather than full time hours as she did previously.
For those employees whose requests for flexible working are rejected they can bring tribunal claims for breaches of the flexible working legislation and it is not uncommon for claims of direct or indirect sex discrimination to be brought at the same. It is the latter which come with uncapped compensatory awards that worry employers; can it legitimately put its own interests above those of its employees?
Yes it can, said the employment tribunal in the recent case of Whiteman v CPS Interiors Ltd and others. Ms Whiteman, a designer, requested to reduce her hours, work from home and to do most of her work in the evenings following her return from maternity leave after having twins. The employer accepted her request to reduce her hours but refused her requests for both home working and evening working. It was of the opinion that the collaborative way of working its designers have together with the fact that designs often have to be changed at short notice meant working at home mainly in the evening was not possible. Ms Whiteman resigned and brought claims for breached of the flexible working legislation, constructive dismissal and indirect sex discrimination.
The employment tribunal stated “It is a perfectly proper answer to a flexible working request for an employer… to say ‘granting this request would not be in the best interests of our business; we believe what has been requested would be detrimental to our business in that, at best, it would cause us minor but more than minimal inconvenience’… although it may in certain circumstances be uncharitable to do so, it is not unreasonable for an employer to put…its own interests above those of the employee when considering a flexible working request”.
An employer is therefore not required to live with inconvenience caused to its business by accepting a request to work flexible simply because to refuse would cause greater inconvenience to the employee in question. Provided, its approach is not discriminatory, an employer can reject a flexible working request.
Donna Reynolds is an experienced Employment Law Solicitor and HR Adviser providing help and guidance to SMEs in Fife, Edinburgh and across Scotland.