Update on Family-Friendly Rights

• Requests for flexible work – second set of regulations approved
• DTI Guidance on new leave rights
• New HSE Guidance
• Equal pay questionnaires
• Further changes?

The right to request a permanent change to terms and conditions relating to hours and/or location of work is contained in the Employment Act 2002 ("EA") (see e-bulletin dated 25th February 2002), which provided that the detail was to be set out in regulations. Regulations covering the procedure for making flexible work requests were approved a few weeks ago (see e-bulletin dated 22nd November 2002) and Parliament has now approved a second set of regulations dealing with eligibility, complaints and remedies (copy available here). Both sets of regulations will come into force on 6th April 2003.

• a request for flexible working can only be made if the employee has been continuously employed for 26 weeks;
• the employee must be the mother, father, adopter, guardian or foster parent of the child, or the spouse or partner of such a person, AND they must have or expect to have responsibility for the child's upbringing;
• applications must be written, dated and state whether and when a previous application was made;
• employees can only complain to a tribunal once they have received a rejection of their application on appeal or, prior to this, if the employer fails to hold a meeting with the employee or fails to notify the employee of his decision within the specified time limits;
• note that the EA provides for three types of complaint: that the employer's reason for refusal is not one of the permitted types of reasons set out in the EA, that the refusal was based on incorrect facts, or that there was a procedural failing. A complaint that the employer's given reason does not justify refusing the request cannot be brought under the EA – but that is not the end of the story (see below);
• where a complaint is upheld the tribunal can order the employer to reconsider the application or award compensation; the maximum compensation is set by these regulations at eight weeks' pay (subject to the statutory cap on a week's pay, which from February 2003 will be £260 per week – therefore the maximum will be £2,080).

It is important to remember that employees may also be able to bring sex discrimination claims, whether or not they are eligible for this new statutory right and whether or not they have complied with the statutory procedure. Women with childcare responsibilities will often be able to show that a requirement to work full-time is indirectly discriminatory, throwing the burden onto the employer to justify the requirement (in terms of demonstrating a real business need outweighing the discriminatory impact). Men may have a claim for direct discrimination if comparable women are permitted to work flexibly. In contrast to the new statutory right to request, there is no cap on the compensation that can be awarded for sex discrimination and a tribunal could also make a recommendation that an employer comply with a request (and, if it refuses, award additional compensation).

Employers would therefore be unwise to reject out of hand a request to work flexibly on the basis that the employee is not eligible for the new statutory right, has not used the correct procedure, or has sought to work flexibly for a limited period only (as opposed to the permanent change provided for by the new right). Equally, where a request is made within the EA regime, employers who simply go through the motions and refuse the request on one of the permitted grounds may comply with the new right but may still run the risk of a discrimination claim if they are unable to show that the reason they give objectively justifies the refusal. Further, the reason given by the employer pursuant to a statutory request could well be useful evidence for an employee in any discrimination claim.

The DTI have now published detailed guidance on the revised maternity rights and the new right to paternity leave and pay also coming into force on 6th April, and the Revenue forms for statutory paternity and adoption pay are also available on the DTI website. Interactive guidance on the new rights is available on the DTI "TIGER" website.

Continuing the family theme, the HSE have published a new edition of "New and Expectant Mothers at Work, A Guide for Employers" (second edition, HSE Books 2002 (HSG122) ISBN 0717625834 £9.50). This explains how to carry out the obligatory risk assessment for pregnant employees. Note that a failure to carry out this assessment will not only be a breach of health and safety regulations but could also amount to unlawful sex discrimination, as held by the EAT in a recent case.

The new statutory equal pay questionnaire is also expected to come into force in April 2003. Consultation on the draft questionnaire ended on 10th January 2003 and the enabling section of the Employment Act is to come into force on 6th April 2003. The questionnaire which will operate in a similar way to the existing sex, race and disability discrimination questionnaires, but subject to an eight week time limit for employers to respond. Tribunals will be able to draw inferences from a deliberate refusal to answer or an evasive or equivocal reply. Employers will be asked whether they agree that specified persons are appropriate comparators doing equal work, whether the employee is receiving less pay and, if so, why.

A joint Treasury/Department of Trade document, "Balancing work and family life: enhancing choice and support for parents" was published on 14th January explaining the Government's strategy in relation to the new leave rights and tax credits for families, but also including possible next steps on which views are sought. The document notes that the new measures coming into effect this April will need time to bed down before considering any further changes, and that the Government is already committed to reviewing the duty to consider requests for flexible working in three years' time. However, the Government also states that, in addition to changes to tax credits and exemptions, it is considering the following changes to employment rights:

• allowing parents to use their full parental leave as one block at the end of maternity, paternity or adoption leave;
• whether to allow fathers time off to attend ante-natal care;
• whether to extend the period of paid paternity leave and/or introduce unpaid paternity leave; and
• the case for extending paid paternity leave in cases of multiple births and disabled children.

© Herbert Smith 2003

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