UK: Flouting Employees´ Rights: The Costs Can Be Substantial

This month we report on a recent case in which an employee successfully claimed against her employer for breaching its obligations in relation to a request for flexible working. This is a useful illustration of the pitfalls of failing to deal properly with such requests. We also draw attention to a recently reported whistleblowing case where a prison officer was awarded nearly £500,000 after being badly treated as a result of reporting bullying and intimidation. In addition, we provide an update on the age discrimination regulations.

Since April 2003, employees with children under six (or disabled children under 18) who have been continuously employed for more than 26 weeks have had the right to request to work flexibly. When an employee makes a request, an employer must follow certain procedures when dealing with it. The employer must consider the request within specified timescales and can only refuse it on the basis of one or more prescribed grounds.

In the case of Clarke v Telewest Communications plc, the employee, Ms Clarke, made a request to reduce her hours by one hour per day after her return from maternity leave. She also asked not to be required to work weekends and late shifts. Telewest failed to respond promptly and to set up a meeting within the 28-day time limit. A meeting was subsequently held at which Telewest presented three alternative work patterns to the one suggested by Miss Clarke, all of which involved her working late shifts and weekends. However, Telewest rejected Miss Clarke's application. After the meeting, Miss Clarke wrote asking for written reasons for the refusal but did not receive a response for a month, despite chasing. The response stated that Telewest required the place where Miss Clarke worked to be open seven days a week and that all employees were required to work some weekends and late shifts.

Miss Clarke appealed, suggesting that it would be possible for other employees or agency staff to cover the shifts she was unable to work. She also suggested working part-time as an alternative. An appeal hearing was arranged. However, two days before the hearing, Telewest wrote to confirm that it rejected the appeal on the basis that for Miss Clarke to work the requested hours, Telewest would have to create a new position to fill the other hours. It also stated that it would be happy to consider her proposal to work part-time, but that they would need her to work a share of evening and late shifts. The appeal meeting then took place. Following the meeting, Miss Clarke resigned and brought proceedings claiming constructive unfair dismissal, indirect sex discrimination and breach of the flexible working regulations. Miss Clarke was successful in all three claims.

In relation to the flexible working application, the Tribunal held that Telewest had:

• failed to reply to the request and set up a meeting in a timely manner;
• made the decision to refuse flexible working prior to the first meeting and without proper consideration of the merits of the application;
• failed to give written reasons for its decision within the time limit required (14 days), and only did so after repeated chasing;
• failed to state on which of the prescribed grounds it had made its decision and to explain why those grounds applied;
• dealt with the appeal unfairly in that a decision was made prior to the hearing and by the same person who had rejected the original application.

What this case (one of very few cases in this area) shows is the importance of ensuring that the statutory requirements are properly followed and that the matter is dealt with fairly and promptly. The case also highlights the importance of not making a decision prior to considering the employee's request fully at a meeting and to ensure, if possible, that someone not previously involved in the process hears any appeal. Properly drafted internal policies and procedures can go a long way to ensure that an employer complies with its obligations, but it is also essential that managers are properly trained in how to deal with flexible working requests.

In the case of Lingard v HM Prison Service, Mrs Lingard, who worked as a prison officer, was successful in her claim for unfair constructive dismissal on the grounds of having made protected disclosures. Mrs Lingard reported incidents of prisoners being bullied by prison officers. Her complaints were not taken seriously. In addition, her employer revealed her name as the whistleblower and she suffered intimidation by her colleagues as a result. Mrs Lingard was awarded £477,000 by the Tribunal, around £470,000 of which was in respect of future loss of earnings and loss of pension rights.

The case demonstrates the potentially serious consequences of a failure to properly manage whistleblowing at work. Compensation for whistleblowing cases is, unlike ordinary unfair dismissal, uncapped and employees do not need the qualifying one-year service to bring a claim.

In our May 2005 briefing, we looked at the areas most likely to be affected by the new age discrimination laws coming into force in October 2006. Draft regulations have now been published and the proposals we highlighted have been confirmed. The regulations will prohibit both direct and indirect age discrimination, though both forms of discrimination can be justified if it is a "proportionate means of achieving a legitimate aim". However, victimisation and harassment cannot be justified. Other changes include the removal of the upper age limits on unfair dismissal and redundancy claims (and on eligibility for statutory sick pay and maternity pay), a requirement for employers to objectively justify setting a retirement age below the default age of 65 (failing which they will have to change it to 65), a right for employees to request working beyond 65 and a new requirement for the employer to inform employees in writing of their intended retirement date at least six months in advance, even when retirement will be at 65.

As predicted, length of service requirements (for example in relation to pay scales, enhanced sick pay and holiday entitlement) may constitute indirect discrimination, but there will be some exemptions. Any length of service requirement of less than five years will be exempt and so will length of service requirements of longer than five years to the extent that they reward loyalty, encourage motivation or recognise experience, provided it reasonably appears to the employer that there is a business benefit in applying the requirement and it is applied to all staff equally. This exemption is likely to provide employers with more flexibility than previously thought. Finally, length of service requirements will be permissible when calculating statutory benefits (such as redundancy payments) and employer-provided benefits which mirror statutory benefits (such as under an enhanced redundancy scheme).

Consultation on the draft regulations will run until 17 October 2005.