Dear HR Law Auntie
One of our female employees, Mary, wants to work from home 3 days a week for childcare reasons. I know that under the new statutory right to request flexible working I have a right to refuse the request for certain business grounds. Due to the nature of her job we consider working from home is likely to have a detrimental impact on the quality of her work and create substantial and unsustainable additional cost for us. Therefore I feel comfortable we can justify refusing her request and seem to recollect, in any event, that compensation under the new statutory right is limited. I would like to make sure however that there is no other exposure we could be subject to, and double-check that my understanding of the statutory right is correct.
“Hesitant about Homeworking”, London
Dear “Hesitant about Homeworking”,
Firstly congratulations on being so up to speed with the “new” statutory right to request flexible working, which, as you have correctly identified, includes the right to ask to work from home. Secondly, you are right to check whether there is any other exposure you could be subject to. This is because in refusing flexible working requests many employers’ exposure is likely to lie rather in terms of potential claims of sex discrimination than a breach of their obligations under the new right to request flexible working.
• Your real exposure in refusing homeworking requests lies particularly in indirect sex discrimination claims from women. As opposed to the caps on compensation for breach of the statutory right to request flexible working (see below), compensation for sex discrimination (which is loss based) is not capped, making these claims all the more worrying.
• The Sex Discrimination Act 1975 prohibits direct and indirect discrimination. Direct discrimination arises where on the grounds of sex a person is treated less favourably than other persons. A claim for indirect discrimination arises where an ostensibly neutral policy, criterion or practice (e.g. the requirement to work full time) is imposed on the whole of a workforce, but has a disproportionate detrimental impact on a particular group – in this case women – because significantly fewer of that group are able to comply with the requirement. Since more women than men have childcare responsibilities, the courts take it as read that they are less likely to be able to work full-time than men. By analogy to part-time working cases, it appears that a woman who is refused homeworking could bring an indirect sex discrimination claim on the basis that the ostensibly neutral requirement to come into the office to work, which is imposed on the whole workforce, has a disproportionate detrimental impact on women because they bear the weight of childcare responsibilities.
• Indirect sex discrimination is lawful if it can be justified. In other words, if you can show that there are legitimate reasons why Mary has to work from the office, then the refusal of her request to work from home will be lawful. However this is not as straightforward as it sounds. Employers are increasingly expected to see how they could accommodate flexible working patterns, by changing work systems, rather than simply refusing requests on the basis that the proposal would not sit easily with current working patterns. Therefore even if current work systems could not support a homeworking request, you would need to consider how you could change those systems to accommodate the request, thereby taking a proactive and not passive approach to the request.
• Given the general acceptance by the courts that women bear the brunt of childcare in society today, it is not feasible (or would be a ground-breaking judgment) for a man to bring a claim for indirect sex discrimination for being refused a homeworking request on the basis that the requirement to work in the office disproportionately affected men. He could, however, in certain circumstances, bring a claim of direct sex discrimination, that is he could show that he has been treated less favourably by reference to an actual or hypothetical female comparator.
• Therefore in allowing and refusing homeworking requests you need not only to fulfil the statutory requirements of the right to request flexible working, but also be mindful of the potential for sex discrimination claims.
Breach of the implied duty of trust and confidence
• In every contract of employment there is an implied term of mutual trust and confidence. If you breach one of your obligations under the new statutory right to request flexible working, or are guilty of sex discrimination in refusing a request, Mary could argue that you have breached your duty of trust and confidence to her. Mary could claim that you are in fundamental breach of contract, entitling her to treat herself as having been constructively dismissed. In order to bring a successful claim Mary would need to show that the breach is fundamental, so trivial breaches would possibly be irrelevant unless part of a cumulative series. She could claim that such dismissal was both wrongful (i.e. in breach of contract) and unfair (i.e. in breach of her statutory rights).
• Even an employee who does not fall within the eligibility criteria to make a request for homeworking under the new statutory right and who nevertheless makes a request, could argue that his employer has breached its general duty of trust and confidence to him if it dismisses his request out of hand, or if the reason for refusal is directly or indirectly discriminatory. So treat any request for home or other types of flexible working seriously.
The right to request flexible working
Just to recap:-
• The right came into force on 6 April 2003 and applies to all employees who have continuous employment of 26 weeks or more and meet certain eligibility requirements. These include having responsibility for the upbringing of a child under the age of 6 at the time of the application. Therefore if Mary’s child is over 6 years old you do not need to consider her request under the new statutory right (though see your other legal obligations above).
• If she does meet the requirements, she has a right to make a request in writing for a contract variation relating to hours/times worked or place of work. This must be in order to look after a child. Check that Mary’s application includes the requisite statutory information. Arrange a meeting with her (she may be accompanied by a colleague), and give a written decision, within the statutory timeframes. Mary has the right to appeal the decision.
• You are correct that you can refuse the request where you have a clear business reason – but it must fall into one of the business grounds listed in the regulations. These include burden of additional costs and detrimental impact on quality. In practice, the statutory business grounds for refusing an application are so wide that an employer should be able to bring practically any “business reason” for refusal of a flexible working request under one or other of them.
• Compensation under the statutory right is limited. Also an employee cannot contest the validity of the business ground of the refusal, unless it is on an inaccurate fact. Disappointed employees can ask the Tribunal for a declaration/order for reconsideration of the application and award of compensation. This is limited to a maximum of eight weeks pay at the statutory maximum rate of £280 per week. (i.e. total maximum = £2,240). Also a dismissal will be automatically unfair if it is because the employee made/proposed to make a request for flexible working, was exercising/ proposing to exercise his right under the procedure, or was bringing proceedings in relation to the procedure. An employee also has a right not to suffer detriment short of dismissal for any of these reasons. Compensation for unfair dismissal is capped at £58,600.