My husband is being asked to move from an 8-4 shift to a flexible rota which means working until 8pm. He has submitted a flexible working request as we have no-one to collect our son and his employer is requesting evidence that I work until 7pm and therefore I am unable to collect our son from school. Are they allowed to do this? He has also mentioned that they want to see his bank statements to check on our financial situation to prove we can’t afford additional childcare.
The company have three months in which to make a decision on your husband’s flexible working request. They can refuse the request if they are unable to accommodate it for one or more of the following business reasons: the burden of additional costs, detrimental effect on ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods you propose to work or planned structural changes.
The legislation suggests that the test for refusing a request is subjective on the part of the employer. Therefore if they consider that one of the ground applies, the test is satisfied. The test does not, on the face of it, import any question of reasonableness into your employer’s judgement. Assuming that one of the eight reasons listed above is given, you could only challenge your employer’s decision if their view is based on incorrect facts.
If the request is refused initially then your husband should appeal the decision. The legislation does not expressly require his employer to allow him an appeal, but the ACAS code suggests that he should be allowed to do so as it may reveal new information or an omission in the procedure used when considering his initial request.
If your husband’s employer regularly allows women employees’ flexible working for childcare reasons and refused your husbands request because he is a man and they believe childcare to be less important to him, he may have a claim for direct sex discrimination.
In relation to the information requested, it seems disproportionate to request your husband’s bank accounts in order to prove you can’t afford additional childcare. However, if you can easily prove that you work until 7pm (e.g provide them a copy of your contract of employment) and this would assist them in making their decision I would suggest you do so. There is nothing in the legislation that says you have to provide any evidence of the circumstances on which the request is based, but if you can provide evidence then it may make it harder for the company to refuse your husband’s request.
If the company refuse your husband’s flexible working request and can justify business reasons for doing so, then they may have grounds to dismiss him if he does not accept the new rota. If your husband has under two years continuous service then the company could dismiss him and he would not be entitled to bring a claim for unfair dismissal as he lacks the required service. If he has over two years’ service then they could dismiss him and immediately offer him a contract on the new terms – this would likely negate any potential unfair dismissal claim as refusal of the new contract could be viewed as a failure to mitigate his losses.
If you have any queries or concerns regarding a flexible working request please do not hesitate to contact me for specialist employment advice, on 0113 200 9784.