UK: Dealing With Flexible Working Requests – The Risks

The recent decision of The Solicitors Regulation Authority v Mitchell highlights the risk of discrimination claims when dealing with flexible working issues. The subject will be at the forefront of employers' minds at the moment due to the proposals to extend the right to request flexible working to all employees irrespective of caring responsibilities. This briefing outlines what happened in the case and considers some of the issues employers will have to think about in preparation for the change in the law, expected to be some time later this year.¹

What happened in this case?

Ms Mitchell, an employee of the Solicitors Regulation Authority (SRA), was allowed to work 3 days in the office and 2 days at home to help her with child care. Another member of her team, Mr Singh, doing a similar job as her, had a son with health difficulties and by reason of his child care arrangements and long journey, it was agreed he could work flexible hours similar to Ms Mitchell. More than 10 years after Ms Mitchell's arrangement was first put in place, it was revoked by her manager. In its place, she was offered flexibility in relation to her start and finish times to allow her to do school runs, but only to work at home on an ad hoc basis. Ms Mitchell raised a grievance which was rejected. She subsequently brought a claim for sex discrimination on the basis that she had been treated less favourably than Mr Singh who, she alleged, was in a similar position to her. Her claim was upheld by the Employment Tribunal and subsequently on appeal to the Employment Appeal Tribunal (EAT).

Before the Tribunal, Ms Mitchell's manager gave evidence as to the reasons why the flexible working arrangement had been withdrawn. Amongst other things, she said she considered Ms Mitchell no longer needed to work from home as her children had started school and she only needed flexibility with start and finish times; other team members wanted to work flexibly for reasons unconnected with childcare; and she had decided to review the arrangements as she believed Ms Mitchell was not a team player and was always out to look after herself. In coming to its decision, the Tribunal found inconsistencies with the manager's evidence.

In any discrimination proceedings, the task of proving discrimination lies initially on the claimant. However, the burden of proof will shift to the respondent if the facts show a prima facie case. The Tribunal noted that for the burden of proof to shift to the respondent, there has to be "something more", other than evidence of unreasonable treatment coupled with a different protected characteristic. The Tribunal and the EAT considered it was enough for what it found to be a "false explanation" of the less favourable treatment to constitute that "something more" so that discrimination could be inferred. Since the SRA had not provided a sufficient explanation for its treatment of her, discrimination was proved.

What this decision means for employers

This case illustrates how potentially easy it is for employers to fall into the discrimination trap when dealing with flexible working requests. When handling requests or changing existing arrangements, an employer will need to have a plausible explanation, unrelated to any particular protected characteristic (such as sex, age, disability), for any difference in treatment between one employee and another. Employers need to be very careful to give the real explanation for making their decision since even if you had no intention to treat employees differently on any protected grounds, if the Tribunal doesn't believe your explanation or if it is misunderstood because it isn't properly documented, this could lead to an inference of discrimination.

Significantly, the Tribunal was entitled to treat Mr Singh as a suitable comparator for the purpose of comparing their treatment, even though Mr Singh's commute to work involved an 80 mile round trip whereas hers involved only 8 miles. The EAT said that a comparator "does not have to be a clone of the claimant merely not materially different".

Will the risk of claims increase when the law is changed later this year?

There is currently a maximum penalty of 8 weeks' pay for breaching the rules set down in the flexible working legislation. This is unlikely to change. However, the real exposure for failing to handle requests correctly lies with the risk of discrimination claims (where compensation is uncapped). We consider that the risks are likely to increase when the law is changed later this year.

Currently, only employees who care for children or adults have the right to request to work flexibly but as stated above, it is proposed that this right will be extended to all eligible employees with 26 weeks' service, irrespective of their caring responsibilities. Some employers already have policies which give all employees such a right. However, most will for the first time be required to face some tricky situations. For example (and please pardon the stereotypes), what would you do if faced with a request from a male employee for a day off a week to play golf, and one from a female employee who wishes to spend a day a week with her baby?

The current law provides that employers may only refuse because they consider (in their opinion) that one or more of the specified business grounds apply. It will remain the same under the new extended right to request but, under the new rules, most of the procedural requirements will be replaced by a new duty on employers to deal with the request in a "reasonable manner". Guidance on what this means is given in the draft ACAS Code which provides that an employer should weigh up the benefits for the employee and the business as against any adverse business impact of implementing the changes. The law does not require employers to make value judgements about the most deserving cases but, in this example, the temptation to do so will be great.

In fact, it is difficult to see how you can follow the ACAS guidance and consider the benefits of the change for the employee without considering the reasons why the employee needs the change. Weighing up the benefits of one employee's request against another's is always going to be dangerous as it is so subjective. If you do, you will have to be extremely careful to document your reasons because, as already mentioned above, failure to have a good explanation for what you did could lead a tribunal to infer discrimination even if, in reality, none exists.

The best strategy is to stick to the business reasons for rejecting or granting the request and make sure these are properly documented. Since the test of what is a business ground is subjective, it is difficult for employees to challenge. Indeed, the courts have said that a Tribunal cannot investigate fairness and reasonableness of the employer's decision to reject on business grounds. However, in a discrimination claim the Tribunal will enquire into the reasons for the employer's actions in order to decide whether their explanation was sufficient to excuse any less favourable treatment. For example, in the SRA case, the Tribunal asked itself why the manager failed to take steps such as speaking to other members of the team about the flexibility they needed or if a rota could be set up.

What should employers be doing now?

Employers should now think about making changes to their flexible working policies in anticipation of the law changing later this year. A policy will help to establish the ground rules to ensure a consistent approach. HR and line managers will need to be trained on how to deal with requests in compliance with the policy. They will need to understand the need to record carefully the reasons for rejecting requests and show how they have tried to weigh up the benefits of the proposed arrangements (whilst avoiding stereotypes) as against the adverse consequences to the business.

Footnote

1. The government originally proposed this would come into force on 6 April 2014 but this has been delayed by the Children and Families Bill which is not expected to receive Royal Assent until 21 March 2014, leaving insufficient time to bring the right into force.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.