The Impact of the New Rights to Flexible Working

The 12 July decision by the Employment Appeal Tribunal in the case of Sykes -v- JP Morgan underlines the significance of the new rights to flexible working. Many difficult issues of sex discrimination should now be avoided.

In this case the applicant was a mother of three children. She was dismissed on the ground of redundancy. During her employment she had asked for flexible working hours in order to have more contact with her children. In addition to unfair dismissal she claimed that she had been subjected to unlawful sex discrimination. She argued this was because her employer had formed the view that by wanting to have greater contact with her children she had "lost energy, motivation and focus for the role she had been performing".

The EAT remitted the case to the Employment Tribunal as it said that the original Employment Tribunal had not considered this argument in sufficient detail. It seems that had the new right to request flexible working hours been available this would have avoided the argument completely.

The new right comes into force on 6 April 2003. All employees responsible for a child under six (or under 18 years where the child is disabled) are eligible to apply to work flexibly provided certain other conditions are met. Most significantly only employees with at least 26 weeks continuous employment can make such an application.

Draft Regulations have been published and the Government is seeking views on a number of issues before final regulations can be made. In particular views are sought on:

1. The proposed definition of the relationship between the parent and the child;
2. The form of an employee's application to work flexibly;
3. How much money (number of capped week's pay) would provide a meaningful level of compensation and act as an incentive to ensure employers consider applications properly;
4. Procedural issues including the employee's right to be accompanied.

Views are sought by 10 October 2002.
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