Benefits surgery: Flexible working rights

Q What will employers’ rights and obligations be under the proposed changes to flexible working rights which come into effect on 6 April 2009?

A At present, employees with a child aged under six years, a disabled child under 18 years or those with caring responsibilities for certain groups of adults have a right to request flexible working. As of 6 April 2009, this right to request will be extended to staff with a child aged 16 years or under.

The change means significantly more parents will be entitled to request flexible working patterns. But the law does not allow for an automatic right to flexible working. An employee only has the right to make an application to request flexible working, which means an employer may decline the request.

But an employer cannot refuse a request without good reason, and may only do so for one of the reasons set out in the legislation. In some circumstances, if an employer refuses a request, the refusal may be unlawful because it may amount to indirect sex discrimination. The law recognises that, at present, most people requesting flexible working are working mothers. If employers refuse these requests, or have policies or practices that require full-time or non-flexible working, this puts female employees at a disadvantage. Most indirect sex discrimination claims of this nature turn on the question of whether the employer has a genuine business reason for turning it down.

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If employers take flexible working applications seriously, follow the proper procedure and do not discriminate against employees, there should be no concerns about a rise in tribunal complaints.

n Jasmine van Loggerenberg, solicitor, employment section, Russell Jones & Walker