Flexible working: the law and best practice
Flexible working: employee protection against dismissal and discrimination
You must not subject an employee to a detriment or dismiss them for a reason relating to their flexible working request. In addition, you should note that rejecting a flexible working request could give rise to a discrimination claim.
Protection against detriment/dismissal for requesting flexible working
Employees are protected from suffering a detriment or being dismissed because:
- they made an application to work flexibly
- they exercised a right under the flexible working request procedure
- they have made a complaint to an industrial tribunal in respect of their flexible working application
- they exercised their right to be accompanied at a meeting to discuss their request or they accompanied another employee to such a meeting
A detriment is where you act in a way that results in unfair treatment of an employee because they did something protected by law, such as exercising a statutory employment right.
Dismissal means your termination of their employment, with or without notice, including redundancy selection and the non-renewal of a fixed-term contract. It could also include constructive dismissal, ie where the employee resigns believing you have substantially breached their contract of employment. Read more on dismissing employees.
Employees who suffer a detriment or are dismissed in these circumstances may make a complaint to an industrial tribunal.
Discrimination and flexible working requests
In some circumstances, rejecting an employee's flexible working request could open up the possibility of a claim for discrimination on grounds of sex, gender reassignment, marital status or civil partnership, race, religion or belief, political opinion, sexual orientation, disability, or age.
For example, if you reject the request of a woman returning from maternity leave to work part-time, this could be seen as indirect sex discrimination. This is on the grounds that a greater proportion of women than men have the main parental caring responsibility - you requiring the employee to work full time puts her at a disadvantage compared with her male colleagues.
However, even if the employee is put at a disadvantage by your flexible working refusal, you can still justify your actions at a tribunal if you can show that they were a proportionate means of achieving a legitimate aim.
Read more on how to prevent discrimination and value diversity.
Part-time employee discrimination
You must not treat part-time employees less favourably in their contractual terms and conditions than comparable full-timers - unless you can objectively justify that treatment.
So, if you agree to a request to work fewer hours, bear in mind that the employee is still entitled to the same pay and benefits (on a pro-rata basis) and access to training and promotion opportunities.
Find out more about employing part-time workers.
Equality Commission Employer Helpline028 90 500 600
LRA Workplace Information Service03300 555 300