Exploring Flexible Working

and Family Friendly Rights

David Poddington, Partner

Tom Draper, Associate

Kelly Gibson, Legal Executive

Rebecca Hutchinson, Trainee Legal Executive

22 September 2016

“ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon

for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of

reliance on this material”.

Programme

Family friendly rights and flexible working: the what and the why?

How to handle flexible working requests

Indirect discrimination

Homeworking pitfalls

Experiences of shared parental leave

Maternity leave and redundancy

New developments

Why do we have family friendly

rights?

Employment rates

What are family friendly rights

Maternity leave and pay

Paternity leave and pay

Shared parental

leave and pay

Adoption leave and pay

Time off for ante natal

appointments

Dependant leave

Parental leave

Flexible working

What is flexible working?

Updated Regulations came into force in June 2014

Now all employees with over 26 weeks’ service can request to work flexibly for any reason

One request permitted every 12 months

Results in permanent change to terms and conditions

Common forms of flexible working

Condensed hours

Part time hours

Part time working

Shift patterns

Home working

Flexi-time

How to handle flexible working

requests Deal with requests

reasonably and assess them on individual merit

Written request (check date)

Arrange a meeting Right to be

accompanied?

The decision

Trial periods? Appeal

Withdrawn requests

Grounds for rejection

Flexible working

requests may only be rejected on prescribed

grounds

• 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

• insufficiency of work during the periods that you propose to work

• planned changes

Flexible working v business needs An employee in a call centre

requests to change his working

hours from 9-5 to 7-3 to enable him

to pick his children up from school.

However, the phone lines do not

become busy until after 9am so

there is insufficient work for the

employee to do and no alternative

duties he can undertake. It is likely

that his request could therefore

reasonably be refused due to

insufficiency of work.

Two management employees apply

for a post as a proposed job-share,

but both wish to work three days

per week.

The business cannot afford the

increased payroll cost, and

proposes that both employees work

2.5 days. However, the employees

will not compromise and therefore it

is likely their request can be

reasonably refused on costs

grounds.

Completing requests

What criteria might you consider?

First come, first served?

Practical discussions with the employees

Setting precedents?

Indirect discrimination

What is discrimination

• Rejecting flexible working requests could have negative disproportionate impact on groups with certain protected characteristics (sex or disability)

• Under the Equality Act 2010, indirect discrimination occurs where A applies to B an apparently neutral provision, criterion or practice (PCP) that A would apply equally to others, but which puts or would put those who share B’s protected characteristic at a particular disadvantage. If the PCP cannot be objectively justified, discrimination will occur

Example:

A woman with less than 26 weeks' continuous service wishes to work part-time

due to her childcare arrangements. She makes a request for part-time working

without following your Flexible Working Policy. This employee may have an

indirect sex discrimination claim if her request is rejected

Claims for breach of flexible working

regulations

Remedies for breach of statutory scheme:

• An order for reconsideration of the request (the date of the tribunal's order will be treated as the date of the request)

• An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to 8 weeks’ pay

Discrimination claims – injury to feelings

Constructive dismissal claims

Case Study

Homeworking pitfalls

Loss of control of working hours –

Working Time Regulations 1998

Damage to team working and

culture Relocation

Insurance and restrictive covenants

Travel time Redundancy

Business rates?

Homeworking: health and safety

considerations

Stress and working hours

Equipment First aid Risk

assessment

Experiences of shared parental

leave

Experiences of shared parental

leave

• Career damage

• Mums don’t want to share!

• Financial implications

Why the low uptake?

What are your experiences?

Maternity leave protections

Pregnant employees are protected against discrimination during the “protected period”

The protected period begins when a woman becomes pregnant and ends when she returns to work after the pregnancy. If she does not take leave or miscarries before 24 weeks, the protected period ends at the end of the period of two weeks beginning with the end of the pregnancy

However, additional protection applies in certain circumstances, including in a redundancy situation

Maternity leave and dismissal

“Employees cannot be

dismissed whilst they are

pregnant”

“Employees on maternity always have the right to

return to the same job”

“Employees on maternity leave cannot be made

redundant”

Myth busting

Maternity leave and

redundancy

Right to be automatically placed into suitable alternative role in preference to any other employee (male or female)

Fairly apply selection criteria (if appropriate)

Consult with any employee on maternity leave

New developments

Shared Grandparental Leave

Childcare vouchers

Gender pay gap reporting

30 hours free childcare per week for working parents

Enhanced maternity rights?

Brexit…

Any questions

Exploring Flexible Working &

Family Friendly Rights

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