As alternative working patterns become more common, the statutory right to request is proposed to be extended to all employees, rather than just those with caring responsibilities, In principal, this new legislation should redress the gender balance. But will it in practice? Asks Anne Pritam, from Stephenson Harwood LLP.
Why should employee A work until midnight when employee B is allowed to leave early to collect her child from nursery? Why should Mr X pick up additional work to cover for Ms Y on her days off? The key to minimising all these issues is clear communication from day one, not just with the flexible worker, but also with other members of the team. If everyone understands the parameters of the arrangements, problems are less likely to arise. Failure to discuss, and failure to continue to communicate clearly where issues do arise, will almost inevitably result in bitterness on both sides. It is a truth, universally acknowledged, that many employers will do anything possible to avoid difficult conversations about performance with their employees.
All-too often, appraisals, if they happen at all, end up being anodyne conversations in which no one brings up what is really bothering them. This is truer than ever when dealing with employees going on or returning from maternity leave, or those working part-time. Employers tend to be fearful that any criticism will be taken as being based on the working arrangements and therefore, potentially discriminatory. It is important to remember that employees who are pregnant or have had children, whether they work flexibly or not, do not acquire some kind of magic protection which protects them from performance management. It is certainly more challenging to manage underperformance appropriately and minimise exposure to claims, but it is not impossible. The discrimination risk can be mitigated by a carefully planned strategy which is followed by all involved. Avoiding the issue is only going to allow the issues to build up and sudden outbursts when things reach a head are almost certain to make things worse.
The best way to deal with performance issues is to ensure they are addressed early and appropriately. If an employee has been told that her work is inadequate before she announces her pregnancy or commences maternity leave, and then seeks to return on a flexible arrangement which her manager simply doesn't believe will be productive given the employee's previous performance issues, the employer will have evidence to support its decision to decline or suggest modifications to the request. Telling an employee that she is not up to scratch for the first time at a meeting to discuss flexible working arrangements is far more difficult, and far too common.
It continues to be the case that most people making flexible working applications are women. Although the statutory right to request is not limited to women, and is about to be extended to all employees, not just those with caring obligations, claims for breach of the statutory right are not where the really valuable claims lie. It remains the case that only female employees can bring the more lucrative complaint of indirect sex discrimination if a flexible working request is unreasonably refused, on the basis that, statistically, women are more likely to work part time than men are and therefore a refusal tends to disadvantage women rather than their male counterparts. What about men who want to work flexibly, whether because they have childcare commitments or because they want to volunteer with a local charity? Why should they be treated any less favourably?
Sadly, there is still perceived to be a social stigma around men working part time and many men will fear the impact it could have on their career. It would clearly be discriminatory on the grounds of sex to treat a flexible working request made by a man differently to one made by a woman purely on the basis of the gender of the applicant. It would also be discriminatory to treat a part time working man less favourably than a part time working woman in respect of promotion opportunities or any other workplace opportunities. However, such differences are often subtle and hard to prove, particularly where each application is treated, as it should be, on its own merits and taking into account the particular role of the individual concerned. The result is that employees who feel they have been treated unfairly are more likely to become resentful and leave the organisation than to raise their concerns. As ever, clear communication from the outset as to the reasons for an employer's decisions can help to avoid unnecessary conflict and the loss of potentially valuable employees. So have we achieved sexual flexible equality in the workplace? We may be closer than we once were, but we won't truly have arrived until nobody bats an eyelid when the male CEO of a FTSE 100 company leaves at 3pm every day to collect his children from school, which is likely to be some significant way off.
