An employment tribunal has found a cabin crew manager with Flybe was subject to indirect sexual discrimination when the employer refused to negotiate on working hours following the birth of her child. In this case the employee had been employed for 13 years and entered into a 12 month legal process to assert her rights, which can only be seen negatively from an employee relations perspective.
When considering the legislation in place, the above case highlights that employers should take a holistic approach to flexible working and have a wider consideration than just the provisions of the Employment Rights Act 1996. The Equality Act 2010 provides for protection from indirect discrimination, where a provision, criterion or practice puts those with protected characteristic at a disadvantage, or in the area of disability there is a proactive responsibility to make reasonable adjustments which may include elements of flexible working adjustments.
Flexible working legislation predominately sits within the Employment Rights Act 1996. Since 2002 the legislative approach to flexible working has evolved from just those employees with children under the age of six and disabled children under the age of 18, to the current position which includes all employees with over 26 weeks of employment. The ERA legislation is procedural in nature and focusses on a written request and justification from the employee followed by reasonable consideration and a decision by the by the employer. The legislation provides allowable reasons for declining a request and some procedural time limits.
Remediation for breaches of flexible working legislation are currently limited to eight weeks pay, with a week’s pay capped at just under £500. Importantly, for employment tribunal claims relating to discrimination, there is no upper limit on awards.
Flexible working is one of a manager’s greatest opportunities to engage with their employees and provide a working environment which is tailored to the individual needs of employees. Although there may be a general reluctance to set precedents or treat people differently, the ability to look at ways to adapt to the differing needs of an individual employee’s work life balance can generate motivation which is unattainable through other means or where other resources are unavailable. It is the nature of the legislation in place that the approach of employers generally becomes focused on the legal floor of their responsibilities and become reactive, rather than encouraging managers to embrace or explore opportunities. All companies should have a considered flexible working policy in place which can address any negative bias and set the tone as to what can be achieved as well as the support which may be provided to make arrangements work to all colleagues.
Jim Taylor LLM – 7 September 2016