Dear Lkijh
Thank you for your query. I understand that you have recently submitted a flexible working request. This is set out in section 80F Employment Rights Act 1996 (“ERA 1996”). Please note that this is a right to request, not a right to have the request granted.
Employers are encouraged to follow the ACAS Code of Practice on handling flexible working requests. Although the Code is not legally binding, Employment Tribunals can take it into account when deciding whether an employer acted fairly. The Code states that your employer must consider your request in a reasonable manner. This includes carefully assessing the effect of the requested changes on yourself as well as on the business and any of your colleagues. It also recommends that they should hold a consultation meeting with you to discuss the request and make sure they understand all the relevant information before making their decision (including discussing any alternative options that might be suitable for all involved, if they think that they might not be able to accept your request in full). We do not know from your query whether or not such a meeting was held and what was discussed.
The Code states that employers ought to agree to requests unless there is a genuine business reason why they cannot. Employers can only refuse a request for one or more of eight specific business reasons. These are listed in section 80G ERA 1996 and are:
(a) The burden of additional costs
(b) Inability to reorganise work among existing staff
(c) Inability to recruit additional staff to cover the work
(d) Negative effect on their ability to meet customer demand
(e) Negative impact on performance
(f) Not enough work during the periods the employee proposes to work
(g) Planned structural changes
I am unsure whether you have received a formal written response clarifying which (if any) of these business reasons the employer is relying on to reject the parts of your request relating to being taken off the nighttime on-call rota and limiting your work locations to within London. If not, I recommend asking for your employer’s decision to be provided in writing. A written decision will help clarify your position (e.g. what business reasons they relied on to reject elements of your request) and allow you to consider your next steps.
Once you have reviewed the written decision you may wish to submit a written appeal against the partial rejection of your request. The Code recommends that employers offer an appeal as part of a reasonable process. Check with your manager or HR team whether an appeal process is available and who it should be submitted to. The written decision (once received) might set this information out.
To strengthen your appeal, you may wish to:
(a) Highlight the negative impact of overnight calls on your child’s sleep (and presumably your own sleep, if you are the person responsible for settling your child at nighttime) due to the size and layout of your home. Mention any negative impact of working outside of London (e.g. difficulties with dropping off and picking up your child from their childcare setting). If you are the main care provider for your child with limited support from others, mention this.
(b) Respond directly to any reasons given for rejecting any elements of your request, saying why you disagree and making suggestions on how to limit any negative impact on colleagues/the business (e.g. have they considered offering extra hours to other staff or recruiting part time staff to cover the workload?).
(c) Suggest a trial period to test whether your proposed arrangements will work in practice for both sides. The Code mentions trial periods as something it would be helpful to discuss.
(d) Ask your employer to consider if there are any alternative arrangements they could accommodate in relation to work location and/or the on-call rota. Request an appeal meeting where such alternatives can be discussed. In this regard, consider if there are any alternatives to your proposal that you would be prepared to accept e.g. could you agree on a catchment area that is within an acceptable travel distance? Could you agree to be on the on-call rota a reduced number of times per month, or for your rota removal to apply only until your child reaches a certain age?).
(e) Emphasise your continued commitment to your role and the positive feedback you have received, especially in relation to your performance during your previous arrangement which was made on the grounds of reasonable adjustments. You should also mention any colleagues or documentation (e.g. performance reviews) which could support this viewpoint.
(f) Mention if your employer promotes itself as an organisation that supports staff in balancing work and personal responsibilities (e.g. in its stated values on their website or in any staff handbook) – which we think it does. Also mention if you are aware of any colleagues having had flexible working requests granted (especially a request similar to the one you are making).
(g) Highlight if they have not complied with the procedure recommended by the Code to date (e.g. did not hold a meeting with you or they do not provide one of the eight permitted business reasons for their rejection).
If an appeal meeting is arranged, the Code recommends that the manager handling the appeal should ideally be someone who was not involved in the original decision. This helps ensure the process is impartial. It also recommends that a meeting should be held before any appeal decision is made, and that you be given the option of bringing a companion to the meeting, such as a colleague or trade union representative.
If your appeal is unsuccessful, I recommend seeking further advice about your potential claims. You may be able to bring a claim in the Tribunal if your employer did not follow the correct process when handling your flexible working request. However, if a claim for procedural failings is successful, the Tribunal can order your employer to reconsider your request (but they cannot insist it is granted) and may award compensation of up to eight weeks’ pay. This means the scope of this type of claim is limited.
Claim for Indirect Sex Discrimination
You may potentially be able to bring a claim for indirect sex discrimination under section 19 Equality Act 2010 if your flexible working request is rejected (including on appeal). To succeed in this type of claim you need to show that:
(a) Your employer applied a requirement (i.e. the requirement for everyone doing your role to be available for overnight calls and/or to work in locations outside of London);
(b) That requirement negatively affects women more than men;
(c) You are unable to comply with the requirement because of your childcare responsibilities; and
(d) Your employer cannot show that applying the requirement to you is justified.
In general, previous indirect sex discrimination cases have found that women tend to have more childcare responsibilities than men and so rigid working requirements can disproportionately disadvantage women. It is therefore possible that you would be able to satisfy (a) to (c) above i.e. by showing that the requirement to work outside of London and/or be on the on-call rota generally has a more negative impact on women (and you in particular) because of not being able to meet childcare responsibilities as a result. It is unclear at this stage (because we do not know the reasons for the rejection) if your employer would be able to justify why the requirement needed to apply to you, bearing in mind your childcare commitments.
If your request is rejected on appeal and you feel this puts you in an impossible situation where you cannot meet your childcare responsibilities/work commitments, you may consequently feel forced to resign from your job. Constructive dismissal is when an employee resigns because of a discriminatory breach or where their employer has behaved in a way that permanently breaks the trust between them. However, these are difficult claims to bring and I recommend seeking legal advice before resigning.
There is a strict time limit for starting a claim in an Employment Tribunal of three months (less one day). Time usually starts running from the date of the act/decision or last in a series of acts/decisions you are complaining about. If you are thinking of making a Tribunal claim in respect of the loss of the work, you will need to go through ACAS Early Conciliation first. You can complete an online form to start early conciliation here: Early conciliation or telephone the ACAS helpline: 0300 123 11 00. You must start Early Conciliation before the time limit expires. In some circumstances, a tribunal will extend the time where it is ‘just and equitable’ but there is no guarantee that a late claim will be accepted.
Unfortunately there are limited options for free representation for tribunal claims. You may be eligible for legal aid: https://www.gov.uk/legal-aid or you should speak to your union, if you are a member, or check whether you have any legal expenses cover on any home or car insurance.
I wish you all the best and hope that you are able to resolve matters.