What will this cultural revolution in the workplace mean for practising security managers and supervisors, and what new skills will they need to develop in dealing with a raft of ‘change of employment’ requests?
In announcing its new proposals assist parents in being able to work more flexible hours, Trade and Industry Secretary Patricia Hewitt recently said that the Government was trying to achieve “a cultural revolution in the workplace”.
Hewitt stated: “There are still far too many old fashioned businesses out there operating as if the men are always the breadwinners and women the housewives.”
Hewitt’s sentiments came hard-on-the-heels of two sex discrimination cases highlighting the difficulties faced by employers and their employees in reconciling their working hours with childcare responsibilities. In both cases, the employees won their claims.
The first was brought by Michelle Chew following her employer’s insistence that she work anti-social shift hours, despite the difficulties this caused her when it came to childcare arrangements. Ms Chew is now expected to receive tens of thousands of pounds’ worth of compensation from her former bosses. The second case involved a male mechanic, Neil Walkingshaw, winning compensation from his ex-employers who had refused a request for him to work part-time hours, in spite of the fact they’d let a female colleague begin to work part-time.
Taken together, these two cases – and the Government’s more flexible working proposals, due to come into effect next year – illustrate exactly how the law can (and will) be used by parents to secure working hours that meet their own needs, rather than solely the needs of their employers.
So what does that mean for security managers and their officer teams? Before we find out, let’s take a look at the vital lessons to be learned from the above cases.
The case of Michelle Chew
Following the break-up of her marriage, Ms Chew was a single parent caring for two pre-school children. She worked as a police constable for the Avon and Somerset Constabulary, and was having great difficulty reconciling her shifts with childcare arrangements.
With this in mind, Ms Chew asked to be allowed to work the same three days each week to fit in with the opening times of her childrens’ nursery rather than work varied shifts. Ms Chew also requested to be excused from nightshifts because she couldn’t afford to pay for additional overnight childcare out of her part-time earnings.
Her employer did adopt a policy for part-time workers, but only allowed employees to work part-time hours if they continued to work a varying shift pattern (encompassing weekends and nights). As Ms Chew’s requested part-time hours did not conform with this shift pattern, her request was rejected out of hand by her superior officer – who didn’t even suggest a meeting with Ms Chew to discuss her concerns. At that point, Ms Chew complained to an Employment Tribunal.
Having listened to evidence from both Ms Chew and her employer, the Tribunal held that the requirement stipulating that she had to continue to work her shift pattern constituted sex discrimination. The Tribunal considered that, as a general rule, more women than men have childcare responsibilities and are therefore less able to work anti-social hours than men. For this reason, such a requirement could be deemed to be discriminatory.
The case of Neil Walkingshaw
In the second case, Neil Walkingshaw won his discrimination claim when his employers turned down his request to work part-time. Mr Walkingshaw, a mechanic, had worked full-time for more than eight years before his son was born. His wife also worked full-time and, during her maternity leave, they made a joint decision that Neil should be the one to revert to part-time working when the period of maternity leave ended.
Mr Walkingshaw offered to find someone to job share, but his request was refused because “the paperwork would be too complicated and too messy”. However, his employers had allowed four female employees to switch to part-time work in similar circumstances.
Mr Walkingshaw resigned in protest at the decision, and subsequently complained to an Employment Tribunal. He was supported in his claim by the Equal Opportunities Commission, the agency which campaigns to end sex discrimination.
The Tribunal held that there had been sex discrimination as the employer had given “no meaningful consideration” to Mr Walkingshaw’s request, but would probably have agreed to a similar request from a woman. Mr Walkingshaw was eventually awarded GB pound 3,700 in compensation.
Now employed in a part-time capacity by another car service company, Mr Walkingshaw told SMT that when he made the initial request to work part-time he expected his former employers to “at least discuss the matter and look at all the options, because women who had had children had been offered their jobs part-time, or offered part-time jobs in other parts of the company. However, I was told they could enlist 100 people to do the job full-time, but they couldn’t employ anyone to do it part-time along with me.”
How to avoid similar claims
From these two cases it’s plain to see that employers operating compulsory shift patterns or requiring employees to work ‘full-time only’ hours can expect to receive complaints relating to sexual discrimination.
However, such complaints will only succeed if the employer’s requirements detrimentally affect women more than men at their place of work – or vice versa – and, crucially, the employer’s actions cannot be justified. Women are the primary child carers, of course (in particular immediately following the birth of a child), and as such stand the best chance of bringing successful claims to Court. That said, the Walkingshaw case highlights the fact that treating men less favourably than women can have the same result.
In practice, the Tribunal will decide the outcome of each complaint on the facts presented, including an investigation of whether the employee could have practically obtained childcare (as opposed to wishing to spend more time with the child) and scrutinising the justification given by the employer in requiring full-time or shift hours.
An employer will defeat a sex discrimination claim where they can show an objective economic or alternative business justification for their actions which is accepted by a Tribunal (for example, the need for continuity of service to the customer, or the inability to perform key duties in reduced hours).
Remember: the security manager who simply could not be bothered with the hassle, or who failed to give a request his or her full consideration will stand little chance of justifying his or her actions in Court.
With this in mind, security managers will need to establish that there is a sensible justification for requiring employees to work full-time or shift hours. In addition, they must also genuinely consider each request not to work these hours. This will include meetings with the employee(s) to understand their reasoning, to consider how many other employees are being affected by the working hours and how seriously they are being affected, whether an exception could be made and to explain the business case for refusal.
A comprehensive record of these meetings should be retained to assist the defence of any resulting sex discrimination claims.
Proposals for flexible working The new flexible working proposals are due to be finalised this summer in advance of an April 2003 implementation. Employee organisations lobbied hard for employees to be given a right to work flexible hours, although the Government has resisted their best efforts.
Instead, the proposals give employees the right to request a change in their normal working hours, their time of work and indeed their place of employment – provided that the purpose of such a request is to care for a child under the age of six years (or, if disabled, under the age of 18 years). However, they do not have any right to be granted that request.
The employer is only under a duty to consider the request by following a set process (including meeting up with the employee concerned). The employer can refuse the request for a number of prescribed reasons set out in the proposals – for example the burden of additional costs, a detrimental effect on the ability to meet customer demand, quality or performance or an inability to recruit additional staff. These reasons are broad and rather general and, as such, don’t present a high hurdle for employers who familiarise themselves with the proposals.
An employee who is refused his or her request cannot challenge these reasons in an Employment Tribunal, and can only complain that the process for making the request was not adhered to, or the refusal was based on incorrect facts. As a result, the employee has a very limited right to complain and, unlike sex discrimination, compensation for breaching the process is minor.
However, it will result in the inconvenience and cost of responding to litigation and the need to carry out the process once more should the Tribunal consider it incomplete.
Clearly, once the Government’s proposals are finalised this coming summer, companies must set up procedures to ensure that the process for considering flexible working requests is followed by security managers and supervisors alike. It’s anticipated that the Department of Trade and Industry will provide guidance on flexible working rights on its web site (www.dti.gov.co.uk) later this year.
It’s also clear that employees of both sexes will continue to rely on the sex discrimination laws to seek flexible hours, in addition to the Government’s new proposals, as they offer the successful employee unlimited compensation.
However, it is less easy to predict whether (as the Institute of Directors recently warned) these proposals will simply be the last straw for many smaller security businesses or departments already struggling with ever-increasing amounts of red tape.
There could also be an unpleasant backlash from employees without children who feel that they’ll be the ones now forced to accept the strain and inconvenience of having to work anti-social hours.
