Flexible working: the right to request and the duty to consider. Part 3
URN No: 07/1390/A3
Protection from detriment and dismissal
How the right works with other legislation
Other help for carers
Other sources of information
Protection from detriment and dismissal
Employees are protected from suffering a detriment or dismissal for making an application under the right. Employees who believe they have suffered detriment can complain to an employment tribunal (see Unresolved applications) regardless of their length of service [provided they have already followed the statutory grievance procedure]. In most cases, employees will be able to make a complaint to an employment tribunal if they are dismissed during the procedure for making an application.
What protection is there against detriment for requesting flexible working?
An employee is protected against being subjected to detriment by any act or deliberate failure to act by their employer because:
- They made (or proposed to make) an application to work flexibly under the right.
- They exercised (or proposed to exercise) a right under the procedure
- They have made or have stated their intent to make a complaint to an employment tribunal in respect of their application to work flexibly.
- They exercised or sought to exercise their right to be accompanied or accompanied another employee
Detriment can cover a wide range of forms of unfair treatment, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered or made available.
Employees who suffer unfair treatment at work for the above reasons may make a complaint to an employment tribunal.
In what circumstances is an employee protected from dismissal under the rights?
Dismissal means the termination of employment by the employer, with or without notice. It could also include constructive dismissal, where the employee has resigned because the employer has made a substantial breach of the contract of employment indicating that he or she intends no longer to be bound by it. Or, it could include the expiry of a fixed-term contract without its renewal or the end of a contract that expires when a specific task has been completed.
It is unlawful for an employer to dismiss an employee because:
- they made (or proposed to make) an application to work flexibly under the right; or
- they exercised (or proposed to exercise) a right under the procedure;
- they have made or have stated their intent to make a complaint to an employment tribunal in respect of their application to work flexibly;
- they exercised or sought to exercise their right to be accompanied or accompanied another employee.
This protection against dismissal also applies if an employee is selected for redundancy on these grounds.
How the right interacts with other legislation
The right to request is designed to enable employers and employees to find flexible working solutions that suit them both. The right encourages dialogue and allows a lot of flexibility in how to consider a request whilst requiring employers to follow a basic procedure. Failure to follow the procedure or basing a refusal on incorrect facts will provide the employee with a basis to take their case to an employment tribunal. Other legislation that employers should be aware of when considering requests is outlined below.
If an employee feels that a disputed request also breaches other legislation, it will be possible for both matters to be heard jointly at an employment tribunal. It will not be possible for these cases to be dealt with under the Acas Arbitration Scheme. The following section outlines how some of the various areas of legislation operate.
Discrimination legislation
Sex discrimination
The Sex Discrimination Act (SDA) prohibits direct and indirect discrimination. Direct discrimination occurs where a woman or a man is treated less favourably than a person of the opposite sex in comparable circumstances because of their sex. Types of sex discrimination include sexual harassment and treating a woman adversely because she is pregnant (in which case there is no need for a male comparator).
In dealing with requests for flexible working, indirect discrimination is more likely to occur. This might be an issue for example in the case of a woman returning from maternity leave and wishing to work part-time. To establish an indirect discrimination claim, an employee will need to show that his or her employer applies a provision, criterion or practice:
- which puts, or would put, women at a particular disadvantage when compared with men (or vice versa);
- which puts him or her at that disadvantage; and
- which the employer cannot show to be a proportionate means of achieving a legitimate aim.
The Equal Opportunities Commission (www.eoc.org.uk) can provide detailed information on sex discrimination.
Racial discrimination
The Race Relations Act makes it illegal to treat a person less favourably than others on racial grounds. It covers grounds of race, colour, nationality (including citizenship), and national or ethnic origin. Further information can be obtained from the Commission for Racial Equality (www.cre.gov.uk).
Disability discrimination
The Disability Discrimination Act makes it unlawful to discriminate against employees on the grounds of their disability or to treat them less favourably, without justification, for a reason related to their disability. Further information can be obtained from the Disability Rights Commission (www.drc.org.uk).
Age discrimination
The Employment Equality (Age) Regulations make it illegal for employers to discriminate against employees, trainees or job seekers because of their age, and ensure that all workers, regardless of age, have the same rights in terms training and promotion. The Regulations cover direct discrimination, indirect discrimination, harassment and victimisation. Further information is available at www.agepositive.gov.uk.
Part-time workers discrimination
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations make it unlawful to treat part-timers less favourably in their contractual terms and conditions than comparable full-timers.
This means that when granting a request for flexible working that involves a reduction in hours, employers should be aware that their employees are still entitled to the same consideration in respect of training, promotion and financial issues. Further information is available at www.berr.gov.uk/employment/workandfamilies/part-time/page12080.html
How the right interacts with other legislation
The right to request is designed to enable employers and employees to find flexible working solutions that suit them both. The right encourages dialogue and allows a lot of flexibility in how to consider a request whilst requiring employers to follow a basic procedure. Failure to follow the procedure or basing a refusal on incorrect facts will provide the employee with a basis to take their case to an employment tribunal. Other legislation that employers should be aware of when considering requests is outlined below.
If an employee feels that a disputed request also breaches other legislation, it will be possible for both matters to be heard jointly at an employment tribunal. It will not be possible for these cases to be dealt with under the Acas Arbitration Scheme. The following section outlines how some of the various areas of legislation operate.
Discrimination legislation
Sex discrimination
The Sex Discrimination Act (SDA) prohibits direct and indirect discrimination. Direct discrimination occurs where a woman or a man is treated less favourably than a person of the opposite sex in comparable circumstances because of their sex. Types of sex discrimination include sexual harassment and treating a woman adversely because she is pregnant (in which case there is no need for a male comparator).
In dealing with requests for flexible working, indirect discrimination is more likely to occur. This might be an issue for example in the case of a woman returning from maternity leave and wishing to work part-time. To establish an indirect discrimination claim, an employee will need to show that his or her employer applies a provision, criterion or practice:
- which puts, or would put, women at a particular disadvantage when compared with men (or vice versa);
- which puts him or her at that disadvantage; and
- which the employer cannot show to be a proportionate means of achieving a legitimate aim.
The Equal Opportunities Commission (www.eoc.org.uk) can provide detailed information on sex discrimination.
Racial discrimination
The Race Relations Act makes it illegal to treat a person less favourably than others on racial grounds. It covers grounds of race, colour, nationality (including citizenship), and national or ethnic origin. Further information can be obtained from the Commission for Racial Equality (www.cre.gov.uk).
Disability discrimination
The Disability Discrimination Act makes it unlawful to discriminate against employees on the grounds of their disability or to treat them less favourably, without justification, for a reason related to their disability. Further information can be obtained from the Disability Rights Commission (www.drc.org.uk).
Age discrimination
The Employment Equality (Age) Regulations make it illegal for employers to discriminate against employees, trainees or job seekers because of their age, and ensure that all workers, regardless of age, have the same rights in terms training and promotion. The Regulations cover direct discrimination, indirect discrimination, harassment and victimisation. Further information is available at www.agepositive.gov.uk
Part-time workers discrimination
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations make it unlawful to treat part-timers less favourably in their contractual terms and conditions than comparable full-timers.
This means that when granting a request for flexible working that involves a reduction in hours, employers should be aware that their employees are still entitled to the same consideration in respect of training, promotion and financial issues. Further information is available at www.berr.gov.uk/employment/workandfamilies/part-time/page12080.html
Other help for carers
The Carers and Disabled Children Act 2000 strengthened the rights of carers to an assessment of their own needs as carers. It gave local councils mandatory duties to support carers by providing services directly to carers and in the provision of breaks, and providing Direct Payments for carers services.
In 2003 changes to direct payment regulations and the introduction of short-term break voucher schemes by DH meant that carers gained more flexibility in accessing short breaks.
In December 2003, a number of major employers, employers’ organisations and Government agencies, coordinated by Carers UK, launched the interest group Employers for Carers, which aims to raise awareness and promote support for carers in the workplace.
The Carers (Equal Opportunities) Act was implemented in April 2005, building on the 2000 Act. It placed further duties on councils to ensure all carers know that they are entitled to an assessment of their needs, and to consider a carer’s outside interests (work, study or leisure) when carrying out an assessment. It also seeks to promote better joint working between councils and the health service to ensure support for carers is delivered in a coherent manner.
Useful organisations
Employers for Carers: http://www.carersuk.org/Employersforcarers
Carers UK: http://www.carersuk.org
ACE National Partnership: http://www.acecarers.org.uk
Princess Royal Trust for Carers: http://www.carers.org
Government websites
Directgov (public services): http://www.direct.gov.uk
Department of Health: http://www.doh.gov.uk
Department of Work and Pensions: http://www.dwp.gov.uk
Business Link: http://www.businesslink.gov.uk
(Includes two interactive tools on flexible working for employers)
Other sources of information
i) Acas (Advisory, Conciliation and Arbitration Service):
Helpline number: 08457 47 47 47,
Website: www.acas.org.uk
Interactive guidance on employment rights (including employer and employee guidance on maternity, paternity and adoption rights).
Acas has a number of offices located in England and Wales.
(ii) Department of Trade and Industry (now Business Enterprise & Regulatory Reform) for more information on employment rights):
Websites: www.berr.gov.uk, www.berr.gov.uk/employment/workandfamilies/index.html
Publication Orderline: tel 08701502 500
Website: www.berr.gov.uk/publications
(iii) Department of Work and Pensions (for more information onbenefits available to expectant mothers and families):
Website: www.dwp.gov.uk
(iv) Other useful organisations
Childcare Link (freephone helpline for childcare information)
Tel: 08000 96 02 96
Contact a Family (the only UK-wide charity providing advice, information and support to the parents of disabled children)
Helpline: 0808 808 3555
Website: http://www.clsdirect.org.uk/index.jsp
Commission for Racial Equality
St Dunstan’s House
201-211 Borough High Street
London SE1 IG7
Tel: 020 7939 0000
Website: www.cre.gov.uk
Disability Rights Commission
Freepost MID 02164
Stratford-upon-Avon CV37 9BR
Tel: 08457 622 633
Website: www.drc.org.uk
Employment Tribunals Service enquiry line (advice on employment tribunals procedure):
Tel: 0845 795 9775
Website: www.ets.gov.uk
Equality Direct (for queries from employers on equality issues in England)
Tel: 0845 600 3444
Website: www.equalitydirect.org.uk
Equal Opportunities Commission (EOC)
Helpline: 08456 015901
Website: www.eoc.org.uk
Working together with employers and others, the EOC’s current investigation into transformation of work is exploring and developing innovative models and solutions to better match the workplace of the future with the workforce of the future. For further details check out the following webpage: http://www.eoc.org.uk/Default.aspx?page=18836
EOC (Scotland)
St Stephen’s House
279 Bath Street
Glasgow G2 4LJ
EOC (Wales)
Windsor House
Windsor Lane
Cardiff CF10 3GE
Fathers Direct
Herald House
Lambs Passage
Bunhill Row
London EC1Y 8TQ
Website: www.fathersdirect.com
Health and Safety Executive (HSE) (for information on safety issues involved in homeworking)
HSE Infoline
Caerphilly Business Park
Caerphilly
CF83 3GG
Tel: 08701 545500
Website: www.hse.gov.uk
Parentline (confidential freephone helpline run by Parentline Plus, providing support to families)
Tel: 0808 800 2222
Tax Credits helpline
Tel: 0845 300 3900
Textphone: 0845 300 3909
Working Families
1-3 Berry Street
London EC1V 0AA
Website: www.workingfamilies.org.uk
Freephone helpline: 0800 013 0313
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