No, that is not the opening line of a bad joke for lawyers!
Both the existing statutory process for an employee to request a flexible working pattern and the now defunct statutory right to request working beyond a default retirement age involve a highly prescriptive procedure that the employee must follow in order to trigger their statutory rights. Although the default retirement age is to be abolished from 1 October 2011, tribunals are still dealing with claims arising from notices of intended retirement issued by employers before 5 April 2011. In one such case, Bailey v R&R Plant, The Employment Appeal Tribunal recently said that it was not enough for an employer to merely tell an employee that they were entitled to make a request to continue working beyond the employer’s proposed retirement date. In order to comply with its statutory obligations, the business had to notify the employee of the “essential conditions” that the employee had to comply with during the statutory process, ie the business had to tell the employee that in order to trigger the business’ obligation to consider his request to work beyond retirement age, the request had to be in writing and state that it was being made under paragraph 5 of Schedule 6 to the Employment Equality Age Regulations 2006 (now repealed).
The statutory flexible working request procedure is, if anything, more onerous on the employee than the statutory right to request working beyond normal retirement age was. In order to trigger a business’ obligation to conisder a flexible working request, the employee’s application must:
- set out the work pattern the employee is requesting;
- specify their entitlement to make the application in accordance with the Employment Act 2002;
- specify any effect that they anticipate the proposed work pattern would have on the employer’s business; and
- specify how such effects might be accommodated or addressed in practice.
In the past, tribunals have held that they have no jurisdiction to hear a claim for breach of the flexible working procedure because the employee’s flexible working request did not meet these requirements. Given that background, I would be interested to see whether a tribunal would now take the view that a business is obliged to notify its employee of these requirements. The difference, of course, is that the retirement process is triggered by an employer’s notice to the employee of an intended date of requirement, whereas in the flexible working process, the first step is the employee’s application. I think it is more of a stretch to imply an obligation for an employer to notify employees of deficiencies in their flexible working application than to tell them what they have to do if they want to request working beyond a default retirement age but there are some parallels.
Even if a tribunal would not be willing to imply an obligation that a business must effectively guide its employees through a proper flexible working application, there may be good reasons for businesses to do so anyway. Irrespective of any rights arising out of the flexible working procedure, in some circumstances employees who are refused the right to work flexibly may be able to pursue claims for sex discrimination, or resign and claim constructive dismissal. The more thoroughly such requests are dealt with, the better a position the employer will be in to defend themselves against such claims.