Employment Law Case Study – Flexible Working and Discrimination

10th June, 2019

Tabletop Computers Ltd has received a flexible working request from one of their IT technicians, Stuart Roe, who has worked there for three years and forms part of a small but busy team of technicians.

Stuart has requested a change to his full time working hours in order to care for his children and pick them up from school. The company has received similar requests from female office staff in the past and has always approved them.

In this instance, Stuart’s request is denied.

Can the company refuse without consequence?

When dealing with flexible working requests, employers can only refuse on the grounds of eligibility, technical flaws or for one of the 8 prescribed statutory reasons.

On the facts of this case, Stuart has more than 26 weeks’ continuous service and therefore satisfies the eligibility test.  Given the limited size and resources of the team, if the company considers that there will be a detrimental impact on the business by allowing his request (e.g. not being able to meet customer demand or the inability to reorganise work amongst other staff) then then it will be able to rely on this reason to refuse the request.  The legal test is subjective and will therefore be satisfied if the company merely considers that the reason will apply.

That said, the ACAS guidance suggests employers should provide an objective explanation and right of appeal when refusing flexible working requests.  In addition to promoting fairness and reasonableness in dealing with such requests, this approach will also assist in defending any potential grievance or Employment Tribunal claim(s), particularly bearing in mind the risk of a gender discrimination claim under the Equality Act 2010 given that requests made by female members of staff have been regularly approved in the past.

For further advice, contact Claire Brook, Employment Law Partner.

Claire Brook Employment Partner Email: [email protected] Tel: 01244 405 575

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