Flexible Family Friendly Working: Ascertaining the Most

Appropriate Tool for the JobChantal Davies (Senior Lecturer,

University of Chester)Mind if I askyou for tipson being a

working parent?

No problem!Just let mearrange a

babysitter…

Summary

• Introduction

• Means of flexible working

• The Sex Discrimination Act 1975

• The statutory right to request flexible working

• The most appropriate tool?

• Conclusions

Introduction

• Government initiatives

• Equal Opportunities Commission report

• Sex Discrimination Act 1975

• The right to request flexible working

Means of flexible working

• Part time work

• Less traditional concepts of flexibility (Suff, 2006)

• Dickens, 2007

The Sex Discrimination Act 1975

• Section 1(2)(b) SDA 1975:• A person discriminates against a woman if:

– he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but—

– which puts or would put women at a particular disadvantage when compared with men,

– which puts her at that disadvantage, and – which he cannot show to be a proportionate means of

achieving a legitimate aim.”• Overcomes problems re disparity, compliance

and mandatory requirement or condition

Justification

• Bilka Kaufhaus v Weber Von Hartz [1986] ECJ 1907

• “proportionate means of achieving a legitimate aim” (section 1(2)(b) SDA 1975)

• Whiffen v Milham Ford Girl’s School [2001] IRLR 468

• Caswell v Advance Travel Partners UK Ltd [2004] unreported

Statutory right to request flexible working

• Parents and Work: Competitiveness and Choice• Work and Families Task Force 2001• Section 80 Employment Rights Act 1996• Flexible Working (Procedural Requirements)

Regulations 2002• Flexible Working (Eligibility, Complaints and

Remedies) Regulations 2002• The right to request• Statutory grounds for refusal• Expansion of the right

The most appropriate tool?

• Lack of precedent in employment tribunals• Complexity of the SDA 1975• The gender divide• Arbitration alternative• Justification versus reasons for refusal:

– Commotion Ltd v Rutty [2006] ICR 290– Webster v Princes Soft Drinks [2005] unreported

• Compensation• Qualifying Service• Statutory Procedure• Definition of employee

Conclusion

• If in doubt plead both!