Employers need to take care in their response to flexible working requests to prevent successful discrimination claims from their employees

A recent report by TUC found that 82% of British workers hope to work flexibly in the future, rising to 87% amongst workers who are women. This highlights the growing appetite for flexible working options and the continuing need for open and encouraging conversations between employer and employee.

Due to the greater requirement for flexibility during the Covid-19 pandemic, more employees are now re-evaluating their current position and are seeking permanent working arrangements that continue to support a work-life balance. Employers are advised to carefully consider their responses to these growing needs.

What right does an employee currently have to request flexible working?

 All employees’ can legally request flexible working if they have 26 weeks’ continuous employment on the date a request is made. Importantly, this is currently only a right to request flexible working and not a right to have it accepted.

In addition, any request made by an employee must be on certain grounds such as a change to their hours of work, their place of work or the time within which they are required to work, in order to be valid. The request should be made in writing, specifying the grounds of the request, when the change is to start and how any effects of the change could have on their work or the business might be dealt with.

Importantly, only one formal request can be made by each employee in any 12-month period. However, if the circumstances of the employee drastically change, there is the option to make an informal request. This type of request carries fewer obligations on how and when an employer should respond, due to the lack of a requirement to follow the statutory scheme. However, an informal request can still allow for claims such as indirect discrimination, so care should be taken by employers when responding to all forms of flexible working requests.

 How should an employer respond to a flexible working request and are there risks of which you need be aware?

 An employer is legally required to consider and reasonably deal with any flexible working request received. A meeting should be held with the employee to discuss the request. It is important to reach a fair decision that is consistent with other previous decisions made.

As an employer, you are also required to notify the employee of your decision within 3 months of the request.

If a request is accepted, this amounts to a contractual variation to the employment contract and will be permanent, unless otherwise agreed. If a request is refused, the most important factor is the reason why it was refused.  Currently, there are eight statutory grounds for denying a request. These include the burden of additional costs, an inability to reorganise work amongst existing staff and a detrimental impact on performance. Any of these provide for a legitimate reason for refusing a flexible working request.

If you refuse the request, the employee can bring an internal appeal against the refusal. The appeal should be in writing.

Alongside weighing up the commercial risk of potentially losing an employee, the main risk of refusing a flexible working request is that it could prompt an employee to bring a discrimination claim if they believe that they have a protected characteristic under the Equality Act and the refusal has placed them at an unfair disadvantage. To avoid this, employers should communicate effectively with employees, be clear on their policies and consider the possibility of implementing a trial period for any flexible working proposals made.

Overall, it is important that employers are mindful in their approach to both listening and responding to flexible working requests.

 If a flexible working arrangement is put in place, what steps should an employer take?

 One way of achieving transparency, is to implement a flexible working policy that clearly lays out any procedure for making flexible working requests, the reasons why a flexible working request would be refused and any relevant time periods. This guarantees a standardised documents that all employees can refer to when looking to make a request and provides for a blanket policy that applies to all.

What potential changes to the law could affect flexible working requests in the future?

 The Government is currently consulting on changes to the statutory flexible working scheme. There are several proposals to consider in case of future implementation:

  1. Making it a day one right to request flexible working.
  2. Modifying the eight reasons for rejecting flexible working.
  3. Requiring employers to suggest alternatives when rejecting a request.
  4. Altering the administrative process underpinning the right to request flexible working.
  5. Providing for greater awareness for using flexible working arrangements on a temporary basis.

These proposals are still under consultation until December 2021.

The Employment Team at Lupton Fawcett is a multi-award winning team which can give specialist advice on any employment matter affecting you or your organisation including advice on flexible working arrangements and drafting suitable supporting policies for you to implement. We can draft a flexible working policy for your business at a cost of only £250 plus VAT. Please contact a member of the Employment Team on 0330 191 043 to further discuss your needs.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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