Article
One: Legal Article - Flexible Working by Penn Legal
Question
We are a small recruitment consultancy (12 staff). Recently we have allowed one of our consultants to work from home. She lives over an hour from the office and due to ongoing high standards of work we thought it beneficial to both parties if she could be given the flexibility to work from a home office one day a week. As a result another member of staff (who does the same role) has asked if he can work from home. I don't want to allow this as I don't believe this employee has the same commitment and high work standards. However, he is saying that he has a legal right to the same benefits as the lady who we do allow to work from home. What can I do?
Answer
Your question raises two issues:-
· The right to request Flexible Working; and
· The right not to be discriminated against on grounds of sex.
I shall deal with these in turn.
Flexible Working
The Employment Act 2002 (the ‘Act’) gives your employees a right to request flexible working. The Act restricts this right to those who:-
· are employees,
· have a child under 6 (or under 18 if the child is disabled),
· have worked with the employer continuously for 26 weeks at the date the application is made,
· have, as their sole purposes for applying for the change, to enable them to care for someone who is, at the time of the application, a child in respect of whom they have childcare obligations. (this list is non-exhaustive)
It is unclear at this stage whether either or both of your employees in question fall within the above criteria. It may be the case that:-
(a) Your female employee satisfies the provisions but your male employee does not. If so, then an employment tribunal will have no jurisdiction to hear the male employee’s complaint.
(b) Both fulfil the criteria referred to above. If so, then subject to complying with the statutory procedures in the Act, the male employee will be entitled, subject to procedural requirements, to have his request considered by you. Any refusal to consider his request and/or to afford him similar terms to that of his female colleague may constitute a breach of the Act.
(c) Your female employee falls outside the provisions of the Act whereas the male employee satisfies them fully. In such circumstances your position will be the same as in (b).
(d) Neither employee satisfies the statutory requirements. If so, then any change to contractual terms falls outside the provisions of the Act as it is merely an exercise of your discretion. In these circumstances an employment tribunal will have no jurisdiction to hear the male employee’s complaint.
To ensure that your position is protected, where (b) or (c) applies, you should:-
· Comply with the consultation process pursuant to the Flexible Working (Procedural Regulations) Regulations 2002;
· Refuse the request only on grounds specified by the Act (burden of cost etc).
Sex Discrimination
Your decision not to consider and/or reject the male employee’s request may constitute discrimination on grounds of sex. A claim of discrimination will only succeed where it is proved that:-
· the male employee was less favourably treated; and
· the treatment was on grounds of sex.
Where the cause of your refusal of his request is shown to be non-discriminatory, i.e. based on competence, performance etc., any discrimination claim may have difficulty in succeeding. However, if the issue of gender is the effective cause of your refusal, irrespective of other matters having also been considered, discrimination may be established.
This is a complex area of law, as each case rests upon its own facts. Specialist advice should therefore be sought to protect your position.
Eliza Saied specialises in Employment and Commercial Law at Penn Legal. Telephone 0870 043 4361 or email
eliza.saied@pennlegal.co.uk
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