Work and Families Bill

moved Amendment No. 19:"Page 10, line 22, at end insert—" ““(   )   In subsection (5) after paragraph (b) insert ““, and (c)   an annual review of the impact of such applications on employees making applications under this section, including on those employees whose applications are refused.”””” The noble Baroness said: The purpose of this amendment is to provide for an annual review of the right to request legislation and its impact on employees, particularly where an application for flexible working is refused. In other words, I want to provide even more evidence. If there is evidence that there has been a detrimental effect on families of unreasonable refusals of the request for flexible working, perhaps in future that would stimulate a debate on the role of employment tribunals and whether they need to be strengthened when they are considering complaints under the Act. The 2002 Act introduced a number of employers’ duties with regard to the applications. Those duties are to deal with the applications in accordance with the regulations, and to only refuse the application on a number of specified grounds, or if they have incorrect facts. Section 80AH of that Act makes provision for complaints to employers’ tribunals if a request is not agreed between the employer and the employee. However, the complaint to an employment tribunal can only be made on the grounds that the employer has failed to comply with the regulations setting out how he should consider the request, or that the application was rejected on the basis of incorrect facts. In practical terms, that means employment tribunals can look only at the procedural issues and cannot look at the business case behind the request. When making a request for contract variation under the Act, the employee is expected to explain the effect of the request on the employer and how such an effect might be dealt with, but there is no corresponding onus on the employer to demonstrate the business case for refusing the request. An employee has very limited grounds for complaint to a tribunal. Tribunals cannot question the commercial validity of the employer’s decision, nor rule on the merits of that decision. Furthermore, even if an employment tribunal finds that the procedures are not being correctly followed, the compensation available is very small. The problem is that that situation leads to a number of dual claims, both under the right to request legislation and, at the same time, under the sex discrimination legislation. Women who want to work flexibly may be able to bring the claim of indirect sex discrimination against their employer under the Sex Discrimination Act, and it has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that they work long or unsocial hours is actually indirect sex discrimination. Tribunals looking at cases of sex discrimination are able to look into the business case and to make much higher compensation awards, so why should flexible working tribunals not be able to do exactly the same? The options open to men to bring sex discrimination claims are much more limited. Fathers are both less likely to ask for flexible working in the first place, and, if they ask for it, they are less likely than mothers to get it. Working Families and the TUC undertook some research in August 2004, when the right to request had been in place for a year. The research showed that 46 per cent of women requesting flexible working were successful compared to only 35 per cent having their requests rejected; yet for men only 20 per cent were successful and 47 per cent were rejected. That finding has subsequently been reinforced by research from the DTI. The annual review I am proposing would gather the information and highlight any problems, and its findings might lead to the Government concluding that flexible working rights need to be brought into line with those on sex discrimination. I beg to move.