Flexible working has become the norm, rather than the exception, for many of us since March 2020.
The government are currently looking at ways to promote flexible working and considering measures that can be brought in to make flexible working the default position.
The government have set out 5 key proposals which they believe will assist with this:
- Making the right to request flexible working a day one right (at present, 26 weeks’ service is needed before a request can be made)
- Considering whether the eight business reasons for refusing a request are still valid (the experience of flexible working has changed considerably for both employees and employers since these were introduced in 2014)
- Requiring the employer to suggest alternatives (e.g. working with the employee to discuss other options)
- Changing the administrative process of making the request (including allowing employees to make more than one request a year and looking at whether the 3 months’ an employer has to respond should be shortened)
- Encouraging the use of temporary arrangements (e.g. a temporary change based on personal circumstances).
Where employers refuse a request for flexible working, employees have the option to challenge this at Tribunal. Whilst the Tribunal can’t enforce flexible working, they can order the employer to reconsider the request and/or award up to eight weeks’ pay to an employee who makes a ‘well founded’ complaint. It may also open the door to possible discrimination claims.
Although the introduction of various family-friendly leave options, including shared parental leave, have taken some steps in addressing the challenges relating to balancing childcare and work, women are still more likely to request flexible working to accommodate childcare duties than men.
This means that a standard approach of ‘rejecting flexible working requests’ could amount to indirect sex discrimination because a standard rejection (with no real thought or consideration) is unlikely to be a ‘proportionate means of achieving a legitimate aim’ and women are more likely to be disadvantaged by this approach than men.
Disability discrimination claims could also arise where employers don’t adequately consider the flexible working request, for example where an employee requests to vary their hours or their work location to help them attend medical appointments.
It’s likely that we’ll see an increase in flexible working requests as a result of the changing working practices that have accompanied the pandemic, particularly if the government proposals above are implemented. Employers can take steps to reduce the chances of claims being made against them or increase the chances of successfully defending any claims, even where a request is rejected.
We’d recommend that employers have a flexible working policy in place which sets out expectations, such as how requests should be made and a timeline for response.
Employers should approach each request on an individual basis, including making reasonable efforts to understand the reasons for the request and investigating all available options. It’s important to have in mind that rejecting requests may be more tricky where employees have worked well flexibly for a long period of time during the pandemic.
Where a response is rejected, it’s important that this is communicated with the employee clearly and the business reasons behind the decision are explained.
For help or advice on flexible-working requests and with drafting or updating flexible-working policies, please contact one of our specialist employment lawyers directly. Alternativly you can call 0115 9 100 200 or click here to send an email.
Posted on December 6, 2021