Flexible working and your rights as an employer

The working landscape has changed dramatically since the beginning of the pandemic. More employees are working from home than ever before despite the government lifting the work from home guidance.

In response the government have now announced they plan to run a consultation which will look into making flexible working the default position, which is a drastic change from pre-pandemic times.

At present, the right to request flexible working does not arise until 26 weeks of employment. The new consultation suggests that this may be changed to give workers the right to request flexible working from day one of their employment. The government’s view is that the right to flexible working should not have to be earned by a particular length of service.

Reasons to reject flexible working

There are eight business reasons for rejecting a flexible working request, and there is no indication that these will be altered. These Currently there are eight business reasons for an employer to rely on when rejecting a flexible working request, and there is no indication that these will be altered.

These reasons are:

  1. The burden of additional costs
  2. An inability to reorganise work amongst existing staff
  3. An inability to recruit additional staff
  4. A detrimental impact on quality
  5. A detrimental impact on performance
  6. Detrimental effect on ability to meet customer demand
  7. Insufficient work for the periods the employee proposes to work
  8. Planned structural changes to the business

If one or more of these reasons do not apply, employers may, if these proposals are introduces, be required to accept flexible working requests as soon as employees start their employment.

How rejecting flexible working to lead to claims

A 2019 poll from the Trades Union Congress, a federation of trade unions in England and Wales, showed that one in three requests for flexible working were turned down by employers. However, rejecting requests for flexible working can lead to claims being made against the employer in the employment tribunal.

Recent rulings underline that companies must show flexibility or face the risk of an employee bringing a successful tribunal claim. In Thompson v Manors, a mother was awarded £184,961 by an employment tribunal on account of sex discrimination when her estate agent employer refused her request for flexible working.

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.

The changes proposed by the government and the shift we are seeing in case law mean that the balance of power in many flexible working requests has now changed, with the employer finding themselves unable to refuse such requests on many occasions.

The benefits of working from home

The past 18 months have also demonstrated that many employees are able to work from home without issue, often in industries where this was not previously the norm and where employers would not have otherwise thought it workable. The benefits of home working have been enjoyed by many employees’ who now see working from home as a way to have a better work life balance.

Remote working provides flexibility that office work cannot. It has been suggested that working from home can lead to better health for workers in a number of ways, for example giving more time for physical activity, the ability to eat healthier, less exposure to illnesses, easier ability to care for family members or their own health issues. Many employees have now created a comfortable workspace at home.

For employers, remote working can save costs in the rental of large office spaces. However, many fear that remote working fosters a less productive and collaborative environment, and employers are less able to monitor their workforce. The jury is still out on this for many.

How Moore Barlow can help

We are able to advise on a range of remote working issues, including how to respond to flexible working requests, advice on what to do if you have been accused of discrimination following the refusal of a flexible working request, drafting flexible working policies and advising on how to manage staff who are working from home.

Contact our expert employment lawyers today