Those of you with social media profiles will most likely have seen lots of photographs of children in their new school uniforms posted by friends and family over the last few days. No doubt many parents took a day or half day off work this week to take a child to their first day at school.
It can be difficult to balance home and work commitments. In this month’s article, Sharon shares some advice and highlights a case relating to flexible working which, while now open to all employees with 6 months’ service to apply for, are still more often than not motivated by a desire to balance work and family commitments.
Working parents will know the trials of balancing childcare with their career. Fortunately for them, they have the legal right to request to vary their working pattern. The statutory right is a ‘right to request’ and not a right to be granted flexible working.
Before 5th April 2015 this right only applied to the parents of children under 17 or 18 in the case of parents of disabled children or to those caring for an adult. Now any employee with 26 weeks’ continuous service can apply to work flexibly for any reason.
The employer does not have to agree to the request. If the request is to be refused, the employer must set out the reasons for its refusal, and the reason must fall in to one of the statutory grounds on which the request can be refused, which are:-
- planned structural changes
- the burden of additional costs
- a detrimental impact on quality
- the inability to recruit additional staff
- a detrimental impact on performance
- the inability to reorganise work among existing staff
- a detrimental effect on ability to meet customer demand
- lack of work during the periods the employee proposes to work
Employers should give full consideration to a request for flexible working. A management decision that certain types of role cannot be carried out flexibly may well not be sustainable in the longer term.
A former postman has recently been awarded £22,000 at an Employment Tribunal, for unfair constructive dismissal after he resigned over his employer’s attempt to unilaterally vary a flexible working pattern previously agreed.
Adam Gregory had worked as a postman for Royal Mail since 1993. In 2012, Gregory asked for his working days to be limited to Monday to Friday to accommodate access to his child at weekends. His line manager allowed this and Gregory signed a letter acknowledging the new working pattern.
In 2015, Royal Mail started a restructuring exercise which was likely to change the way duties were carried out where Gregory worked. A questionnaire to determine employees’ working preferences was sent out. Gregory was on holiday at the time, so his union representative picked his preferences for him and selected a duty which would require Gregory to work three Saturdays a month.
When Gregory returned from holiday and discovered what had happened, he objected and submitted a new flexible working request. A manager considered the new request but rejected it, partly on the ground that the work could not be reorganised among staff. Gregory appealed the decision, but this was also rejected.
Gregory raised a grievance, the outcome of which was that Royal Mail acknowledged that Gregory’s contract, as far as working hours were concerned, had been altered in 2012.
However, one month after this acknowledgement, Royal Mail sent Gregory a letter confirming he was to work three Saturdays a month. In response, Gregory resigned.
Allowing Gregory’s unfair dismissal claim, the Employment Judge said “it was not physically impossible for [Royal Mail] to maintain his Monday to Friday working pattern, it was merely unsatisfactory, inconvenient, and more costly”.
This does not mean that an employer can never reject a flexible working request, but it is important to properly consider the request, and if a request has been agreed, not to attempt to unilaterally change the arrangement. The risk of that course of action is a constructive dismissal claim and/or a sex discrimination claim.
As always, for advice on this matter or any other employment law query, please get in touch.