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Flexible Family Friendly Working: Ascertaining the Most Appropriate Tool for the Job

Flexible Family Friendly Working: Ascertaining the Most Appropriate Tool for the Job. Chantal Davies (Senior Lecturer, University of Chester). Mind if I ask you for tips on being a working parent?. No problem! Just let me arrange a babysitter…. Summary. Introduction

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Flexible Family Friendly Working: Ascertaining the Most Appropriate Tool for the Job

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  1. Flexible Family Friendly Working: Ascertaining the Most Appropriate Tool for the Job Chantal Davies (Senior Lecturer, University of Chester) Mind if I ask you for tips on being a working parent? No problem! Just let me arrange a babysitter…

  2. Summary • Introduction • Means of flexible working • The Sex Discrimination Act 1975 • The statutory right to request flexible working • The most appropriate tool? • Conclusions

  3. Introduction • Government initiatives • Equal Opportunities Commission report • Sex Discrimination Act 1975 • The right to request flexible working

  4. Means of flexible working • Part time work • Less traditional concepts of flexibility (Suff, 2006) • Dickens, 2007

  5. The Sex Discrimination Act 1975 • Section 1(2)(b) SDA 1975: • A person discriminates against a woman if: • he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but— • which puts or would put women at a particular disadvantage when compared with men, • which puts her at that disadvantage, and • which he cannot show to be a proportionate means of achieving a legitimate aim.” • Overcomes problems re disparity, compliance and mandatory requirement or condition

  6. Justification • Bilka Kaufhaus v Weber Von Hartz [1986] ECJ 1907 • “proportionate means of achieving a legitimate aim” (section 1(2)(b) SDA 1975) • Whiffen v Milham Ford Girl’s School [2001] IRLR 468 • Caswell v Advance Travel Partners UK Ltd [2004] unreported

  7. Statutory right to request flexible working • Parents and Work: Competitiveness and Choice • Work and Families Task Force 2001 • Section 80 Employment Rights Act 1996 • Flexible Working (Procedural Requirements) Regulations 2002 • Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 • The right to request • Statutory grounds for refusal • Expansion of the right

  8. The most appropriate tool? • Lack of precedent in employment tribunals • Complexity of the SDA 1975 • The gender divide • Arbitration alternative • Justification versus reasons for refusal: • Commotion Ltd v Rutty [2006] ICR 290 • Webster v Princes Soft Drinks [2005] unreported • Compensation • Qualifying Service • Statutory Procedure • Definition of employee

  9. Conclusion • If in doubt plead both!

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