Whitehall supplies get-out clauses for flexible
work
The government's new rules on flexible working came into force
on 6 April via numerous different enabling regulations.
Many employers will mistakenly believe that the regulations require
them to allow their staff to work flexibly if requested to do so.
This is not the case. The regulations actually set out a wide range
of valid reasons for a request to be refused, including detrimental
impact on quality or performance, additional cost, problems
reallocating work and recruitment difficulties.
The main impact of the regulations, in the short term at least,
will simply be to require employers to enter into formal dialogue
with qualifying employees who make requests for flexible working,
by following a fairly rigid procedure. Given the wide scope for
legitimate refusal allowed by the regulations, employers appear
more likely to be penalised for failure to follow this procedure
than for actually refusing the request.
By way of an example, the main form of flexible working many
employees will want is home working. The cost of the IT
infrastructure to support this has been expensive in the past, but
the costs are falling and most medium and large organisations will
be in a position to make the necessary investment. The employer's
equation can take into account both the financial cost and also any
impact on performance and quality of work.
At the very basic level the company would need to provide a dial-in
remote access service, although this is unlikely to meet
operational needs in terms of quality and performance. ISDN has
been an option in the past, but is relatively expensive. One of the
best solutions would be a virtual private network using
browser-based software for e-mail, documents and other
applications.
Home working also brings additional health and safety costs for
employers, as they remain legally obliged to provide a safe working
environment, including dealing with workstation and display screen
issues in the home workplace as well as the workplace. Therefore,
although the position is likely to change as the technology
improves and remote working takes hold in society, at present most
employers will find it relatively easy to justify refusing home
working on costs and performance grounds.
However, even if the employer's reasons for refusal are watertight,
a simple failure to comply with the set procedures can carry a
penalty of up to £2,080, which is eight weeks' pay capped at the
statutory maximum level of £260 per week. Treating employees to
their detriment (including dismissing them) as a result of making
such a request is likely to result in an automatically unfair
dismissal claim. We are also likely to see constructive dismissal
claims arising out of failures by employers to follow the statutory
procedure.
With this in mind, one really must question whether the aim of the
regulations is simply to create a formalised talking shop and a
pointless and unnecessary system of penalties for employers.
Instead of creating significant new rights for employees to be able
to work flexibly, the regulations do little other than to introduce
yet another basis for employees to make purely "procedural" claims
against employers, regardless of the overall situation at
hand.
Employers should also be aware that the regulations are still only
part of the overall picture and that they do nothing to change the
existing laws on sex discrimination.
It remains the case that, regardless of the procedure followed, if
an employee returning from maternity leave (or otherwise with
childcare responsibilities) is turned down for flexible working
without good business reasons for the refusal, a valid claim of
indirect sex discrimination can still arise.
Matthew Tom is a solicitor in the employment and resourcing
department at Tarlo Lyons
