Since 6 April 2003 parents of children aged under 6 (or under 18 if the child is disabled) have had the legally enforceable right to ensure that a request for flexible working arrangements is not rejected without good cause.
Although time limits can be varied by agreement between the employer and the employee, the normal regulatory timetable is as follows. Unless the employer agrees to the request and informs the employee of this in writing, a meeting must be held, within 28 days of the application being made, to discuss the employee’s application. The employer then has 14 days to notify the employee, in writing, of the decision. If permission is denied, the letter must specify the grounds for refusal. The employee then has 14 days to appeal in writing. An appeal meeting must be held within 14 days of receipt of the letter.
A call centre worker, whose employer refused to grant her request for flexible working arrangements in order to look after her baby, won her case at an Employment Tribunal. Her case was supported by the Equal Opportunities Commission.
Deborah Clarke had worked for Telewest for nearly seven years. She put in her request for flexible working arrangements on 31 July 2003, whilst she was on maternity leave and six months before she was due to return to work in January 2004.
Ms Clarke did not receive a reply from her employer within 28 days after the date on which her request was made. At a meeting on 28 September, her request for flexible working was turned down. Although an appeal meeting was set up for 8 December, it was clear that a decision had already been reached as Ms Clarke was given a letter, dated 6 December, rejecting her request. All the working hours options offered by Telewest included working on Saturdays and Sundays. Ms Clarke’s original request had made it clear that this would not be possible for her after the birth of her child. As a result, she submitted her letter of resignation on 11 December 2003.
Ms Clarke brought a claim of indirect sex discrimination, constructive unfair dismissal and breach of the Flexible Working (Procedural Requirements) Regulations 2002. The Birmingham Employment Tribunal upheld her claims and she was later awarded compensation of £19,500.
This case illustrates that employers must take applications for flexible working seriously and must comply with the procedural requirements laid down in the Regulations. Where possible, steps should be taken to make it easier for employees to combine work with their child care commitments. A refusal to do so which cannot be objectively justified could result in a claim of sex discrimination and constructive dismissal as illustrated by this case.
