22 January 2014
What would constitute an unlawful refusal to permit an employee to work flexibly?
We have already established that a refusal to permit an employee to work flexibly may be unlawful if the refusal cannot be justified (see our Bitesize articles of 2 January 2014 and 8 January 2014). This Bitesize considers the meaning of "justification".
Although there is no statutory guidance on this point in Hong Kong, when considering the meaning of "justification" the courts will try to put themselves in the shoes of the employer and consider the commercial rationale. In this regard, it is likely that the courts would consider the following factors:
- Additional costs;
- Detrimental effect on the ability to meet customer demand;
- Inability to re-organise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work;
- Planned structural changes.
The lengths to which the English courts will go to challenge an employer's reasons for a refusal are borne out by the case of British Airways Plc v. Starmer  IRLR 862. In this case a commercial pilot with British Airways (Ms. Starmer) sought to work 50 percent of full-time. British Airways offered Ms. Starmer to work 75 percent of full-time but refused her request to work 50 percent of full-time due to the:
- burden of additional costs which British Airways would face;
- inability for British Airways to re-organise work amongst existing employees;
- detrimental effect on quality and performance; and
- British Airways' inability to recruit extra employees.
The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal's decision that British Airways' refusal of the request was not justified. The EAT analysed each of British Airways' purported grounds for justifying the refusal to allow Ms. Starmer to work 50 percent as follows:
- Burden of additional costs
British Airways alleged that the costs incurred in accounting for Ms. Starmer's removal from the reserve pool (which provided cover for day-to-day eventualities such as sickness) and recruiting another employee to cover the other 50 percent of her job would amount to GBP53,000.
It was held by the EAT that, with the resources of British Airways in mind, these costs did not justify the refusal of Ms. Starmer's application to work 50 percent. In particular, whether she worked 50 percent or 75 percent British Airways would have had to remove her from the reserve pool and incur these costs, or a large proportion of them, as a consequence (so their own offer of 75 percent work undermined this argument).
British Airways' current employees were already flying more hours than permitted by British Airways' agreement with the relevant trade union. Therefore, British Airways argued it could not meet all its staff requests and a reduction in staff could have a detrimental impact on customer services due to the delay between recruiting a commercial pilot and the new pilot actually flying.
The Tribunal rejected this argument on the basis that a business the size of British Airways could always recruit more employees. The Tribunal saw the agreement between British Airways and the relevant trade union as a voluntary agreement and no more.
British Airways claimed it could not recruit new employees as it had a freeze on external recruitment and all of its training resources were occupied until either October or November 2004 due to the acquisition of new aircraft during late 2004 and 2005.
The Tribunal rejected this argument as the recruitment freeze was British Airways' self-imposed constraint.
Conclusion: Whilst commercial issues will be considered by the courts in determining whether an employee's refusal is "justified", the issues must be genuine and substantial and the size and resources of the employer will always be relevant.