Equality law and flexible working
Download Prospect’s guide on equality at work and part-time & flexible working
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- Equality at work
- Flexible working
- Different types of flexible working
- Legal rights of flexible working
- Right to request flexible working
- Other resources
Equality at work
The Equality Act provides for protection against discrimination on the grounds of the following protected characteristics:
- marriage/civil partnership
- religion or belief
- sexual orientation
The Act makes the following forms of prohibited conduct unlawful:
And on the grounds of disability:
- failure to make reasonable adjustments
- discrimination arising in consequence of disability.
Flexible working – a balancing act
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:
Working less than the usual full-time hours for a particular job.
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.
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, .
A form of part-time working where the employee only works during school terms and is off work during the school holidays.
Working predominantly from home, with some time spent in the office.
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.
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 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.
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.
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.
Employers for work-life balance
Right to request flexible working