A helpful approach for your employer to take

One important way an employer can avoid discrimination when deciding who can change their working hours or work flexibly is to set up a process which does not start by looking at the reason for the worker’s request but first considers whether their organisation would still be able to carry out its purpose if they agreed the request.

So, if you make a request, your employer should look at the impact on your work and on their organisation, not at the impact on the your personal circumstances (unless you are a disabled person and the reason for the request is as a reasonable adjustment).

This is the approach your employer must take if you are using the right to request flexible working under employment law.

But it is also a helpful approach for an employer to take if flexible working is available to a wider range of workers.

For example:

An employer does not need to know that it is important to a worker to accompany a relative to kidney dialysis sessions on a Wednesday afternoon, just that they wish to adjust their hours to avoid working at that time.

When you make a request for flexible working, whether that is under the right to request or not, do it in a way that answers questions your employer may have about the impact on their organisation if they agreed your request, rather than telling them about your personal circumstances.

Once your employer looks into the matter with an open mind, they may well find that your request causes fewer problems than they initially feared.

In some situations, however, an employer cannot avoid considering the worker’s reasons for the request – for example, if a worker requests a reasonable adjustment because they have a disability.

The employer must also consider a worker’s reasons for the request if they are thinking about refusing it in a situation which might be indirect discrimination. In other words, the employer is applying a rule to the worker which would disadvantage them and also tend to disadvantage others with the same protected characteristic, eg other women or other workers of the same religion.

To avoid indirect discrimination, the employer must be able to objectively justify what they are doing. This means that the rule they are applying must be proportionate. The impact on a worker of the employer saying ‘no’ is weighed up against the employer’s needs. The greater the problems caused for the worker (and other workers with the same protected characteristic), the better justification the employer needs for refusing the worker’s flexible working request.

This is the approach your employer must take if you are using the right to request flexible working under employment law.

But it is also a helpful approach for an employer to take if flexible working is available to a wider range of workers.
 

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Last Updated: 29 Jul 2010