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07 April 2003

Loophole leaves employers facing huge employment claims.

From 6th April, turning down an employee's request for family friendly hours could cost employers tens of thousands of pounds in damages, warns Ray Levy, partner at leading London law firm Freedman Green.

New employment legislation out this week gives all employees with a child under 6 the right to ask their employers to work fewer hours or even work from home.

If an employer refuses they will have to give the employee, in writing, clear business grounds for their decision. An employee who disagrees with their employer's decision can then bring a claim for damages in an Employment Tribunal.

"The Government has attempted to cap the amount of damages which can be awarded against an employer to a maximum of 2,600", explains Ray Levy. "Unfortunately, that may simply be the tip of the iceberg.

"What the Government has failed to realise is that the majority of those wanting family friendly hours will be women. If an employer refuses to accept a request from a woman to change her working hours or to work from home, this automatically provides grounds for that employee to bring a sex discrimination claim with potentially unlimited damages awarded against the employer."

What's more, although the flexible working rules were designed to prevent an employee from challenging an employer's decision (unless it is factually incorrect), if a sex discrimination claim is brought at the same time, the employer will automatically lose this protection. This means that the burden will be on employers to justify their reasons to a Tribunal and face hefty damages if the Tribunal disagrees with their decision.

"Employers will have to be extremely careful in dealing with requests for flexible working under this new legislation," says Ray Levy. "There are fixed time limits which they must comply with and employers will be required to put in writing their reasons for accepting or refusing any request. These written reasons will be admissible evidence that can be used against the employer and it will be more important than ever for an employer to seek legal advice before committing itself to writing."

All this will mean additional headaches for employers, already facing increasing burdens as the rise in National Insurance Contributions and increases in maternity and paternity benefits come into force at the same time.

Factsheet for Employers / Employees

For further information or to obtain a free fact sheet for employers or employees explaining the new rights and obligations, please contact Ray Levy on :
Tel: 020 7625 6003 or
email : r.levy@freedmangreen3.co.uk.

Further Details

1. Freedman Green is a leading commercial law firm based in London's St John's Wood.

2. On 6 April 2003, the UK Government will bring into force new employment legislation on flexible working. The provisions governing these changes are set out in the Employment Act 2002, which received Royal Assent on 8 July 2002.

3. To be eligible to make a request for flexible work, a person must:
a. be an employee
b. have a child under 6 (or a disabled child under 18)
c. have worked for at least 26 weeks prior to making the application
d. have not made a similar request within 12 months

4. A request for flexible working may include:
a. flexitime
b. job-sharing
c. working from home
d. staggered, compressed or annualised hours

5. An employer is required to arrange a meeting with the employee to discuss an application for flexible working within 28 days of receiving the request and must provide written reasons for accepting or refusing the request within 14 days of that meeting.

6. If refused, the written notification from the employer must include:
a. the business grounds for refusing the application
b. sufficient explanation why the grounds apply in the circumstances
c. details of the employees right to appeal

7. Acceptable business grounds for refusing a request may include:
a. burden of additional costs
b. detrimental effect on ability to meet customer demand
c. inability to reorganise work amongst existing staff
d. inability to recruit additional staff
e. detrimental impact on quality
f. detrimental impact on performance
g. insufficiency of work during periods the employee proposes to work
h. planned structural changes

8. The Sex Discrimination Act prohibits direct or indirect discrimination in employment. Indirect discrimination may be established if a procedure or decision is such that it will affect a considerably larger proportion of women than men. As many of the applicants for flexible working hours will be women it is expected that refusal to accept such applications will give rise to claims of indirect sex discrimination (an issue which the Government acknowledges in its 'Flexible Working' Guides for Employers and Employees produced by the DTI).

9. The flexible working legislation does not permit an employment tribunal to question the employer's business reasons for refusing a request for flexible work, but it may challenge the facts asserted by an employer in evidence of those reasons. Under sex discrimination legislation, however, the burden of proof is moved to the employer who is required to justify any business decisions affecting the employee or establish that they were within a range of reasonable responses.



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last modified: 07-April-2003