Management Regulation & Law

Flexible Working – How Flexible Must An Employer Be?

The working landscape has changed significantly since the beginning of the pandemic. For many employees, working from home has become the norm and there is little appetite for a full-time return to the office. This contrasts with the attitude of many employers, who have begun to encourage workers back into the office only to be met with resistance.

Such has been the demand for flexible working rights, the Government began a consultation to review making a flexible working request a day one right under which employers would be placed under an obligation to accommodate the request, unless they can show that that there was a legitimate business reason for not doing so.  We spoke to Matthew Davis, Associate Solicitor at Gorvins working in the Employment Team to find out more.

At present, employees attain the right to make a flexible working request after 26 weeks of service. Currently there are eight business reasons for an employer to rely on when rejecting a flexible working request, albeit the consultation has considered reducing the scope of these reasons.

At present, the reasons are:

  • The burden of additional costs
  • An inability to reorganise work amongst existing staff
  • A detrimental impact on performance
  • A detrimental effect on ability to meet customer demand
  • A detrimental impact on quality
  • An inability to recruit additional staff
  • Insufficient work for the periods the employee proposes to work
  • Planned structural changes to the business

Recent rulings highlight that an employer must show flexibility or face the risk of an employee bringing a successful tribunal claim. Last month, in Daly v BA Cityflyer, a flight attendant was awarded £38,741 after it was found by a tribunal that there had been indirect sex discrimination when her employer refused her request for a reduction in her working hours and working days following the birth of her baby. Whilst in Thompson v Manors, a mother was awarded £184,961 by an employment tribunal on the grounds of sex discrimination when her estate agent employer refused her request for flexible working.

Discrimination laws protect against detrimental treatment of those with a protected characteristic. Sex is a protected characteristic under the legislation, and it is entirely foreseeable that the protection from discrimination will be triggered by other protected characteristics, such as disability and age, in the context of flexible working reasonably soon.

Subsequently, there is a real opportunity for pro-active employers to provide flexibility for the benefit of all employees and prospective job-applicants. A considered approach to flexible working should also protect against employee discontent and costly tribunal claims.

What should employers consider?

  • Remain fair and consistent in considering flexible working requests and keep a clear record of your reasoning when making decisions.
  • Try to identify a pattern of working that suits both parties. If you reject a flexible working request on the grounds of a legitimate business reason, consider whether an alternative arrangement can be agreed with the employee? Even if this can’t be achieved, you will be able to demonstrate that you have acted reasonably.
  • Offer a trial period to assess whether the request can be sustained long-term.
  • Consult your existing policies and practices for flexible working, which ideally will incorporate the statutory requirements relating to discrimination and the ACAS code of practice.

If you require advice on this topic or any other employment law matter, please contact the employment law team at Gorvins on 0161 930 5151 or visit their website here

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