Flexing the facts

A recent case has cleared away some confusion surrounding the right to flexible working, in particular, how far an employer has to go to determine if a request is workable.

There has been a concerted effort to make employment more 'family friendly' recently, including changes to statutory rights to maternity, paternity and adoption leave.

Another of these steps has been the right to request flexible working. It was introduced a decade ago in the 1996 Employment Rights Act and so it is a little surprising that we have waited until this year to receive all authoritative judgement on some important aspects.

There have been employment tribunal cases, of course, but they do not bind the subsequent decisions of other tribunals. At most, they are indicative. Now a decision of the Employment Appeals Tribunal (EAT), splendidly cited as Commotion Ltd v Rutty, has given us that authoritative judgement.

It was already understood that the right to flexible working is limited in a number of ways. For a start, it is not flexible. You can ask to vary your contract, including your hours of work, times of work, and whether you work at your place of work or elsewhere (at home, usually).

However, once you have varied that contract, it stays varied. There is no right to ask for the original terms of the contract back, or to change the terms regularly. It is also limited to employees with at least 26 weeks' service and to those with direct parental responsibility.

Nevertheless, provided the request is made in the correct form, the presumption in law is that it should be granted unless the employer can adduce reasons against it.

Acceptable reasons for not granting a request are: the burden of additional costs, a detrimental effect on the employer's ability to meet customer demand, inability to re-organise work among existing staff, inability to recruit additional staff, detrimental effect on quality, detrimental impact on performance, insufficient work during the periods the employee proposes to work, and planned structural changes.

Right to appeal

If the employer refuses, an employee can appeal to an employment tribunal. The tribunal does not have the right to ask whether the employer's decision was reasonable.

However, a tribunal may find for the employee if it believes the employer failed to follow statutory procedures or that the facts on which the employer based the decision were wrong.

In the Rutty case, the Employment Appeals Tribunal found that the employer, who claimed that he wished to eliminate part-time working in order to build team spirit, had made no effort to find out whether the facts he was working on were correct.

The EAT suggested that he could and should have checked whether he could have coped without disruption, sounded out the feelings of other workers, and ascertained whether time could have been made up.

There was no evidence that the employer had made any enquiry whatever. Mrs Rutty resigned and claimed constructive dismissal and the tribunal found in her favour.

What are the lessons for schools and colleges? First, it is not obligatory to turn the school upside down to meet a request for family friendly working.

If the school/college concludes that it cannot ensure continuity of service or a proper level of service, or that it will be unable to recruit staff to fill the vacancy that flexible working creates, then it can refuse.

Stick to the facts

However, this must be on the basis of facts. A decision that two part-timers cannot, by definition, do the work of one full-time person will simply not be acceptable. There will have to be factual grounds for that assertion.

Similarly, there will need to be some reasonable ground for believing that there may be a problem in recruiting a part-time member of staff to job-share or to fill the post.

These facts will differ. A school or college in challenging circumstances, or in an area of the country where there are problems recruiting staff, will probably be able to make a stronger case than those in an area where there are few difficulties.

Much will depend on the level and nature of responsibility and on the day-to-day duties of a post. For example, where much knowledge has to be held in someone's head and there are practical or financial difficulties in organising timetable over-laps to allow for information exchange, there may be facts that will support a case against flexible working.

In the long run, it may well be that the decisive factor will not be the law but the job market.

In a world where the market for graduates will be highly competitive and where holding on to staff becomes critical, it may be that the economic argument for developing ways of working which enable us to use all the talent available will be more powerful than any legal ruling.