Flexible working requests

We reported last month that the Government had launched a consultation seeking views from individuals and businesses on proposals to reform flexible working regulations.  The consultation, which can be accessed here, is open until 1 December 2021.

Whilst the outcome of the consultation will not be published for many months and the extent of any resultant reforms remains to be seen, businesses must ensure compliance with current legislation in the meantime.  It is anticipated that employers may see a rise in the number of flexible working requests made as the move from homeworking to office based, or hybrid working continues.  That said, as hybrid working becomes more commonplace many employers are updating their company policies and procedures to accommodate and encourage hybrid and flexible working.  Where these policies are more generous and flexible than the statutory position, this may actually result in a reduction in the number of formal flexible working requests made if working patterns can be accommodated without the need to go through the statutory process.

Currently, an employee must have 26 weeks continuous service with an employer in order to make a flexible working request. This request can be in relation to how many hours are worked; when they are required to work; and where the work must be carried out. Only one request can be made in any continuous 12 month period.

If a flexible working request is received, employers have obliged to deal with the request in a reasonable manner. Whilst there is no prescribed list of steps an employer must take, ‘reasonable’ steps commonly include assessing the advantages and disadvantages of the application, holding a meeting to discuss the request with the employee and offering an appeal process if the employee is dissatisfied with the outcome. It is also advisable for an employer to suggest an alternative flexible arrangement where the original arrangement proposed is refused.

An employer can refuse a request where there is a good business reason to do so. The grounds an employer can cite for refusal are:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise workamong existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of workduring the periods the employee proposes to work; and
• planned structural changes, eg the employer intends to reorganise or change the business and thinks the requestwill not fit with these plans

However, it should be kept in mind that a valid and reasonable rejection of a request could still lead to a claim for indirect sex discrimination. In Thompson v Scancrown Ltd, trading as Manors a sales manager at an estate agent returning from maternity leave requested to work a four day week and leave work at 5pm to collect her daughter from nursery. Her request was declined – the reasons were the detrimental effect on the ability to meet customer demand and the inability to reorganise work amongst existing staff. The Employment Tribunal found that the employer’s rejection was not proportionate and subsequently there was an injustice because of the employee’s sex. An award of compensation for £185,000 was made.

In another case, a community nurse who worked fixed days per week was required to work flexibly, including working at weekends, after a new policy was introduced by her employer. She was unable to comply because of her caring responsibilities for her three children, two of whom were disabled, and was subsequently dismissed. Even where the employer does not penalise an employee for not complying with a flexible working policy, this may still result in a discrimination claim.