24th September, 2021
Consultation to take place on the right for employees to request flexible working from day one
The proposals being put forward would allow all employees the right to request flexible working from day 1.
The government is proposing changes to flexible working requests for employees in a consultation document titled “Making Flexible Working the Default” which was issued on 23 September 2021.
The current law is perceived to be outdated and this was the case prior to the pandemic. The current proposals to be published by the Department of Business, Energy and Industrial Strategy (Beis) results from the Good Work Plan. However, the last 18 months has seen millions of workers work from home and enjoy other flexible arrangements and in a change in the perception of many employers to flexible working requests. The consultation taking place will end on 1 December 2021 and will consider whether rights to request flexible working should become a “right” for all rather than something that is seen as a “perk” for some employees.
The consultation document sets out five proposals, including:
- The right to allow employees the right to request flexible working from day 1.
- Whether the current 8 business reasons for refusing a request remain valid.
- Consideration of the current process and timing of responding to requests.
- An obligation on employers to suggest an alternative arrangement if refusing a request.
- The right to request temporary arrangements.
The current statutory right to request flexible working only applies to employees with 26 weeks service, although in some cases employers already offer the right to make flexible working requests as a day 1 right (although this is generally the exception rather than the rule).
Currently, employers must deal with requests in a “reasonable manner”, consider the request, hold a meeting, and allow an appeal. Requests for flexible working can be refused if there is a good business reason.
It remains the case that many workers are not permitted to work flexibly, frequently with little or no reason of justification given for the refusal. Many employees are too afraid to ask to work flexibly for fear of it being rejected. Employers currently can turn down flexible working requests for a wide variety of reasons. Although the rejection of flexible working request can leave employers open to indirect sex discrimination claims, if there are no issues of discrimination, there are generally limited claims that can result from refusals to agree to flexible working requests.
This year has seen two cases highlighting the risk of indirect sex discrimination claims facing employers who refuse flexible working requests. The case of Dobson v North Cumbria Integrated Care NHS Foundation Trust highlighted the need for employers and tribunals to consider the disparity in childcare arrangements when a female employee was dismissed for refusing to work weekends. On appeal the Judge commented that the tribunal had failed to consider the fact that more women than men tend to have childcare responsibilities so that men are more likely to be unable to comply with the requirement to work more flexibly including hours over weekends.
The more recent case of Thompson v Scancrown Ltd saw a female employee being awarded £185,000 in compensation for indirect discrimination because of sex. One of the factors being the refusal to allow the employee to change her working hours to finish work at 5pm not 6pm to be able to get to her child’s nursery.
Future for flexible working
The consultation is proposing to make requests for flexible working easier for employees but the paper acknowledges that the right to work flexibly requires agreement between employee and employer and that flexible arrangements do not work for all individuals or businesses.
Flexible working does not necessarily work for everybody. For instance, 40% of employed mothers, according to research carried out by BEIS and the Equalities and Human Right Commission, had not requested some flexible working they would have liked. Many of them said that they feared this would damage their careers – with office working still being considered the norm, and flexible working at different hours and in different physical locations being considered a novelty, they believe that if they were to take the opportunity, they would be overlooked for promotions, and other such important steps in their career.
With many businesses open to flexible working patterns this may not be seen as a concern, but for many businesses, if changes to the flexible working rules are implemented it may lead to an influx of flexible working requests for employers to consider. Flexible working requests can range from working fewer or different hours, or compressed hours, changing hours of work or start and finish times, working more flexibly throughout the day or working from home.
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