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Background to Flexible Working

Legislation came into force in 2003 providing parents and some carers with a right to request a flexible working arrangement.  Requests could include changes to work location, working hours and working pattern. This was followed in 2014 with the right extended to all employees with 26 weeks’ continuous service. The latest consultation goes further and proposals would affect both employers and individuals who are looking to change their contracted working arrangements.

Flexible Working Consultation Reminder

Just in case you missed it the Government’s consultation on flexible working “Making Flexible Working the Default” closes on 1 December 2021.

Proposals

The current consultation discusses:
• making the right to request flexible working a day one right;
• whether the current eight business reasons for refusing a flexible working request all remain valid;
• requiring the employer to suggest alternatives;
• the process around the right to request flexible working – particularly allowing an employee to make more than one request a year, and whether the employer’s time to respond should be changed; and
• requesting a temporary arrangement.

Also included is the Government’s response to the July 2019 consultation.  That looked at proposals to support families and whether large employers with more than 250 employees should publish their parental leave and pay and flexible working policies.  It also examined whether all employers will be required to state in adverts that flexible working is an option. There are also proposals on a right to unpaid carers’ leave.

Current Practical Issues

As an employee your right to request flexible working is probably best described as weak. As an employer you are expected to deal with a request reasonably but the business reasons for refusal are extremely broad and not subject to any reasonableness test.

Where there are procedural failings as an employee you may bring an employment tribunal claim which could lead to a compensation award.  There’s a maximum award of up to 8 weeks’ pay. The tribunal cannot question the business reasons for a refusal however as an employer you should be mindful when considering requests as a refusal may lead to other claims – for example, indirect sex discrimination.  This is often based on the fact that more women than men may need to change their working patterns to accommodate caring responsibilities. Requests from employees who are about to go on or about to return from maternity leave need to be treated carefully.

This is shown in an employment tribunal claim that made the headlines at the end of the summer.  If this topic is relevant to you, the judgment is well worth a read. In this case the claimant was awarded more than £180k as compensation for a claim against her former employer. The claim was for indirect sex discrimination when a request to work flexibly on return from maternity leave was refused. The question was whether the employer’s refusal was a ‘proportionate means of achieving a legitimate aim’ and the employment tribunal found it wasn’t.  This meant that her claim for indirect sex discrimination succeeded.

The tribunal judge said that no doubt the employer would learn lessons from the judgement!

Other claims may also be brought against an employer depending on the circumstances. In the same case, a claim for unfair dismissal failed.  The claimant had resigned from her employment and relied on a breach of trust and confidence to make her claim.  However, the employment tribunal held that the reason for her resignation was that she didn’t want (or wasn’t able) to work the contracted hours.

Conclusions

One consequence of the continuing pandemic is that flexible working requests are likely to increase.  With this may come the weight of more potential claims including discrimination and unfair dismissal.
It remains to be seen what impact the consultation will have on flexible working. If you want to have your say then please respond to the consultation.

 

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