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Equality law and flexible working

Equality law and flexible working

Download Prospect’s guide on equality at work and part-time and flexible working

How Prospect can help you

Our representatives can offer initial advice and may be able to represent you in the grievance process. Where the matter is complex or it seems that a tribunal case is likely, the claim will be referred to the Prospect full-time officer responsible for your branch. They will be able to advise you on all aspects of the law relating to equal rights at work, and will seek further expert advice from the union’s legal officers where necessary.

There are very strict time limits for bringing claims to an employment tribunal and in the majority of cases a claim must be presented within three months of the incident of discrimination occurring.

Unsure who to contact? Get in touch via our Member Contact Centre. You can call 0300 600 1878 between 8.30am and 7pm from Monday to Friday, or alternatively email helpdesk@prospect.org.uk for advice.

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Equality at work

The Equality Act provides for protection against discrimination on the grounds of the following protected characteristics:

  • age
  • disability
  • marriage/civil partnership
  • pregnancy/maternity
  • race
  • religion or belief
  • gender
  • sexual orientation
  • transgender.

The Act makes the following forms of prohibited conduct unlawful:

  • direct discrimination
  • indirect discrimination
  • harassment
  • and victimisation.

And on the grounds of disability:

  • failure to make reasonable adjustments
  • discrimination arising in consequence of disability.

Flexible working – a balancing act

Helping members to balance their working lives with their personal lives is a priority on Prospect’s bargaining agenda.

Innovative ways of working that allow employees to manage their working lives without ruining their personal lives do exist. We look at how flexible and reduced patterns of work can help employees to find that work-life balance.

Different types of flexible working

Different working patterns can be adopted to suit individual employees and different types of job:

Part-time work

Working less than the usual full-time hours for a particular job.

Job sharing

Two people sharing a job that would normally be a full-time post. They will each be employed on a part-time hours basis but share the post between them.

Flexible working hours

Flexible start and finish times to the working day. There will usually be a core time, for example 10am-3pm, with staff being able to start and finish any time up to two hours before or after this time. Hours can be built up to take time off work.

Compressed hours

Working the total number of hours over fewer days, for example working 10 hours a day over four days instead of working 40 hours over five days, .

Term-time working

A form of part-time working where the employee only works during school terms and is off work during the school holidays.

Homeworking

Working predominantly from home, with some time spent in the office.

Annual hours

Where there are set yearly hours rather than weekly hours, and there is flexibility to work at different periods throughout the year.

Career breaks

A period of unpaid leave that can last from a few months to five years. The best schemes guarantee the right to return to a job at the same level and operate a “keep in touch” policy to ensure continued contact during the career break.

Sabbaticals

A period of paid or unpaid leave, usually to undertake education or research.

Legal rights of flexible working

Several areas of employment legislation can be used to help improve members’ work-life balance. The law may be a useful tool to achieve good policies and successful outcomes in individual cases, but the best way of improving policies is to negotiate good agreements to suit your workplace.

The following laws may be relevant:

  • The Part-Time Workers Regulations provide for equal treatment of part-time workers
  • The Employment Rights Act 1996 and the Flexible Working Regulations 2014 provide a right to request a change in hours or location
  • The Children and Families Act 2014 gives all employees the statutory right to request a change to their contract terms to work flexibly as long as they have worked for the employer for 26 weeks on the date the application is made. From 30 June 2014, there is no need for an applicant for flexible working to be a carer.
  • The Equality Act 2010 (as detailed above)
  • The Maternity And Parental Leave Regulations provide the right to maternity leave and the right to return to the same or similar post after maternity leave; allow for up to 18 weeks unpaid leave to care for a child under the age of 16 or disabled children under 18; and also provide for time off for dependents. At present, this leave can be taken up to the child’s fifth birthday (in April 2015 the age limit will increase to under 18 years)
  • The Health and Safety at Work provisions will be relevant to all employees.

Right to request flexible working

The right to request flexible working was extended to all employees from 30 June 2014.

Before 30 June 2014 only parents of children under 18 and carers had this statutory right. But this has now been extended to all employees who have been employed for 26 weeks or more.

Under the legislation, employees can ask for their contracts to be varied to change:

  • hours of work
  • times or patterns of work
  • location of work (to work from home, for example, or work at another site)

As requests are no longer related to family or caring responsibilities, they can be made for any reason and the employer must give them due consideration.

The right only applies to:

  • employees, ie those working under a contract of employment and not to the broader definition of worker
  • those with 26 weeks’ continuous employment.

Once a request to change hours or location is agreed under the provisions, it will be a permanent change, with no obligation on the employer to agree to vary the terms later on. For example, if an employee goes part-time in order to care for a young child, there will be no right to revert to full-time hours later on, unless this is contractually agreed with the employer.

Applications

There are strict procedures for making an application to work flexibly. This must be in writing and dated, and state:

  • that it is an application under the statutory provisions
  • the change applied for
  • the proposed date for the change to take effect
  • whether a previous application has been made and when
  • the impact it would have on the employer
  • the employee’s proposal on how such an impact could be dealt with.

The last two points appear to place an unrealistic burden on the employee, as it will be for them to state the expected effect of the change and to propose remedies for the employer. It is unclear how literally tribunals will apply these conditions, but they are likely to put some employees off.

Once an application is made, whether accepted or not, employees cannot make a further application under the legal provisions for 12 months.

Obligations on the employer

The employer is under a statutory duty to consider the request and to comply with the legal procedures for doing so. But there is no legal right for the employee to challenge the reasonableness of the employer’s refusal.

An employer can only refuse an application if it considers that one or more of the following grounds apply:

  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficient work during the periods the employee proposes to work
  • planned structural changes.

Procedures

Once the employee has made the application:

  • the employer must consider the request in a reasonable manner
  • the employer is under a duty to deal promptly with requests
  • a final decision must be given within three months of the application being received
  • the three-month limit can be extended by agreement
  • the final decision must be given in writing, specifying a reason. The employer is not required to provide a written explanation for the refusal.

Other resources

TUC
www.tuc.org.uk/equality-issues/gender-equality/parents-and-carers

Working Families
www.workingfamilies.org.uk

Employers for work-life balance
www.employersforwork-lifebalance.org.uk

Right to request flexible working
www.acas.org.uk/flexibleworking

EHRC
www.equalityhumanrights.com

 

There are strict time limits for making claims to an employment tribunal. For most types of claim, including unfair dismissal or discrimination, the process must be started within three months of the dismissal or incident occurring.  So it is extremely important that members seek advice as soon as possible.

Legal advice and assistance is offered at the union's discretion and is decided on the facts and merits of each case. See our legal advice guide for details of our services and the terms and conditions for advice.

The law is somewhat different in Northern Ireland, the Channel Islands and the Isle of Man. Members in these areas should contact their negotiator or Prospect's member contact centre for more information.