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Flexible Working Arrangements - Considerations

Throughout the pandemic the Employment Tribunal (ET) has seen an increase in the number of claims related to the right to request flexible working due in part to the large number of employees now working from home. The blog will consider the ways in which an employer should deal with receiving a flexible working request and outline the consequences of getting it wrong.

It will also consider the potential changes to the rules of flexible working requests following a recent government consultation.

What is the right to request flexible working and who is eligible?

Employees in the UK currently have the right to request that their employment terms are changed so they may work more flexibly. These types of requests can be quite varied. Employers may see requests made for part-time working, flexi-time, shift-working, staggered hours, job-sharing, homeworking, etc., the list goes on. Generally though, the three main types of requests are a change to the hours worked, a change to the times that are required to be worked, and a change to the place of work.

It should be emphasised that this right is only the right to request; there is no inherent right to flexible working and if employers can justify refusing a request, then the employee is unable to make a further request for 12 months.

Employees have to meet certain eligibility criteria before they have the right to request flexible working. First, the individual must be an employee (an individual who works under a contract of employment). This includes fixed-term employees but excludes contractors, consultants and agency workers (although there is an exception for agency workers returning from a period of parental leave). Second, they must have at least 26 weeks’ continuous employment at the date the request is made.

Dealing with a flexible working request

Ideally, employers should put measures in place to deal with flexible working requests before a request is even made. This allows them to be dealt with properly and fairly every time.

Once a request has been received, the employer should demonstrate serious consideration of the request. Employers may only reject a request on specific grounds: either a lack of eligibility or a prescribed statutory reason (including the burden of additional costs, an inability to reorganise work among existing staff and planned structural changes to name a few). When considering a request, employers should not be looking at this list in an attempt to find a reason to reject requests and tribunals are critical of employers who do so. Instead, they should identify the potential issues granting the request may cause and communicate with the employee to find a way to mitigate those issues.

Even when it isn’t possible for the employer to grant the employee’s request, the reason for the request should be identified and alternatives to achieving the same goal should be considered. This may result in a solution that is better for both employee and employer or at least one that is viable for both. There does not even have to be a permanent change to the employee’s contract, as a temporary adjustment may be more suitable.

Once a decision has been reached, it should be explained to the employee fully and clearly. Tribunals are entitled to find that a rejection has been made on the basis of “incorrect facts”, which is easier to find in cases where the basis for the decisions is not explained. Additionally, employees who have been given a clear explanation of why their request and any alternatives were rejected (or why their request was rejected in favour of a proposed alternative) are less likely to challenge that decision at an ET.

Potential consequences of rejecting a request

The ET has a very limited power to provide compensation to employees who successfully make a claim that their request was wrongfully rejected. However, employers should be mindful that there is a link between the right to request flexible working and other statutory protections, most notably, the right to protection from unlawful discrimination.

Some employees will make requests for flexible working for reasons which, if rejected, could give them a claim under the Equality Act. One example of this would be an employee requesting to work part time to coincide with their childcare commitments. If an employer has a policy of rejecting requests to work part-time, since this disproportionately affects women (being the gender most likely to have child care commitments), this could amount to indirect sex discrimination. Therefore, it is very important that employers consider the impact of any rejection and whether there are any protected characteristics in play (e.g. gender, disability, race).

One very recent example of this is Thompson v Scancrown Ltd in which the sales manager of an estate agent was denied a flexible working request to work 4 days per week and shorter hours in order to collect her child from nursery. Her employers provided a number of statutory reasons for denying her request but the ET still found that she had been indirectly discriminated against. If the employer had taken more time to consider this request or any possible alternatives to allow this employee to collect her child on time, then this claim would likely never have been made. Their failure to do so led to the employee being awarded almost £185,000 for loss of earnings, pension contributions, injury to feelings and interest.

Employers must always remember to look beyond the request itself and consider whether a rejection could be discriminatory in any way. This is even more important in cases of potential disability as employers are legally obligated to make reasonable adjustments for disabled employees. When a disabled or potentially disabled employee makes a request for flexible working for reasons connected to their disability, employers should carefully consider whether rejecting the request would amount to a refusal to make a reasonable adjustment.

Why start now?

Employers need to be aware of these pitfalls now more than ever given the increase in home working through the pandemic. As we ease back into a sense of normality, many employers are keen to have their employees back in the workplace, but not all employees are so eager to re-join. This in turn has increased the number of claims made to the ET that relate to flexible working requests.

It is vital that employers ensure they know the correct way to deal with flexible working requests and the potential consequences of not considering the discriminatory aspects of rejecting them if they wish to avoid being the subject of discrimination allegations.

What are the upcoming changes and what should employers be doing?

The government conducted a consultation last year (which closed on 1 December 2021) on a proposal to extend the right to request flexible working mainly by eliminating the 26 weeks’ service requirement. This would make the right to request flexible working a ‘day one’ right. The outcome of this consultation is yet to be published but there has been major support for this change as a way to initiate conversations between employer and employee on how a flexible working arrangement could be achieved. The proposal also considers whether the “no more than one request every 12 months” rule is too rigid and whether it should be reduced to 3 months before another flexible working request can be made.

Neither of these proposals would require employers to make any changes to their processes, but it may be helpful to pre-empt these potential legislative developments and review any flexible working polices that are already in place. While there is no requirement for flexible working procedures to be written down, it is important that employees have a clear method to communicate their request to their employers, especially if they are to become a day one right.

Employers should consider creating policies with standard forms for employees to complete as well as detailing the process by which a request should be submitted and will be reviewed. This helps to ensure all requests are considered in a clear, consistent and fair manner and employees are able to clearly see how their request will be treated.

Without strong polices in place to ensure reviews are properly completed and potential alternatives are fully considered following flexible working requests, employers may find themselves on the receiving end of a very costly discrimination claim.

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