UK: Flexible Working Consultation – A Default Right?

Morgan Lewis
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Morgan Lewis

On 23 September, the UK government published a consultation document, “Making flexible working the default”, which proposes various reforms to the right for employees to request flexible working arrangements—particularly in light of changes in working practices brought about by COVID-19.

Whilst the UK government’s consultation document (Consultation) does not propose an automatic right for employees to work flexibly, it does include several measures which would broaden the scope of the right to request flexible working.

In particular, the Consultation sets out five proposals for reshaping the existing regulatory framework to support this objective:

  1. Making the right to request flexible working a “day one” right by removing the 26-week qualifying period
  2. Assessing whether the eight existing business reasons for refusing a statutory request for flexible working remain valid
  3. Requiring employers to suggest alternatives if they intend to refuse a flexible working request
  4. Assessing the administrative process underpinning the right to request flexible working
  5. Considering how the right to request a temporary flexible arrangement could be better utilised

The Consultation will remain open until 1 December 2021, with any changes unlikely to come into force until mid- to late-2022.

The changes are expected to encourage employers and employees to engage in meaningful discussions around flexible working arrangements. However, importantly, employees will still only have a right to “requestand not a right to demand—flexible working. Employers will still therefore be able to reject flexible working requests if there are adequate business reasons for doing so.

THE CURRENT FRAMEWORK

Under the provisions set out in the Employment Rights Act 1996 (ERA), all employees with 26 weeks’ service have the right to ask to change their location, hours, and times of work. They can make one statutory request for flexible working each year. Employers can say no, but the refusal must be based on one of eight business reasons set out in the ERA:

  1. Extra costs that will be a burden on the business
  2. The work cannot be reorganised among other staff
  3. People cannot be recruited to do the work
  4. Flexible working will negatively affect quality
  5. Flexible working will negatively affect performance
  6. The business’s ability to meet customer demand will be negatively affected
  7. There is a lack of work to do during the proposed working times
  8. The business is planning structural changes

An employee can make a complaint to an Employment Tribunal (ET) in any of the following circumstances:

  • The employer fails to deal with the flexible working application “in a reasonable manner”
  • The request is not resolved within three months (including time for any appeal)
  • The employer has refused the application for a reason other than the statutory grounds
  • The employer’s decision to reject the application is based on incorrect facts
  • The employer has wrongly treated the application as withdrawn

If the ET considers the complaint well founded, it can order the employer to reconsider the application and make an award of compensation of up to eight weeks’ pay, subject to the upper limit on the amount of a week’s pay (which is £544 from April 2021).

THE PROPOSALS

Making the right to request a ‘day one’ right

Currently, requests for flexible working can only be made by employees who have worked for their employer for at least 26 weeks. The 26-week qualifying period was introduced, in part, to balance some of the potential business burdens of administering statutory requests for flexible working. However, the post-implementation review carried out on the impact of the Flexible Working Regulations 2014 did not find evidence of unreasonable cost burden resulting from dealing with flexible working requests.

Under the Consultation, it is proposed that employees should be entitled to this right from the first day of their service. The government believes that removing the current qualifying service requirement will help deliver a culture change which could lead to advertising the availability of flexible working becoming the norm. It would also help to encourage certain behavioural changes from employers such that they consider flexible working options early in the job design or recruitment process and give employees more confidence to make a request.

The business reasons for refusing a request: are they still valid?

Under the existing regulations, there is a list of statutory business grounds, as noted above, on which basis an employer can reject a request to work flexibly. The Consultation seeks views on whether these business reasons that were considered reasonable in 2014 remain so. The government does not envisage a need for fundamental changes to this list of reasons.

Requiring the employer to suggest alternatives where possible

The Consultation seeks views on whether employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working.

The government believes that where the parties cooperate to find a compromise, this could promote stronger working relationships and deliver more of the benefits of flexible working. For example, if an employer cannot accommodate a permanent change, it could look at making the change for six months.

The administrative process underpinning the right

The government also wants to explore whether allowing employees to make more than one statutory request each year would make the framework more responsive to changes in an individual’s circumstances. Respondents are asked to consider whether the legislation places unnecessary barriers to accessing flexible working on those whose personal situation may have changed within 12 months (such as newly disabled people or new parents).

The Consultation also considers whether the three-month deadline for responding to requests remains the right approach.

Requesting a temporary arrangement

The current legislative framework already provides for a temporary arrangement to be agreed upon between the parties. However, the government believes that this is under-utilised. As the government recognises that there is often a need to request a contractual change for a defined, time-limited period, the Consultation seeks views on what would encourage employees to make such requests.

WHAT DOES THIS MEAN FOR EMPLOYERS?

In short, there are no significant changes for employers for now.

The proposals do not introduce an automatic right for employees to work flexibly; this is only a consultation on proposed reforms to the right to request to work flexibly. However, it does signal that changes are on the way (such as the removal of the 26 weeks’ service requirement), and employers may want to keep these in mind when thinking about their future hybrid working or other working arrangements.

Important considerations

Despite the limited change to the “right to request” framework, it is important to remember that refusing a flexible working request can result in an indirect sex discrimination claim. Any flexible working request by an employee must be handled carefully and given adequate consideration irrespective of whether it is made under the current or the new proposed regime.

Although flexibility is increasingly being sought by both women and men, evidence from the pandemic has shown that women have disproportionately shouldered the additional childcare burden. It is likely to remain the case for the foreseeable future that women will be able to show that they are particularly disadvantaged by a refusal to allow flexibility because of childcare responsibilities. If a request for flexibility is linked to childcare requirements and is unreasonably denied, it could lead to an indirect sex discrimination claim.

A recent ET matter, Thompson v Scancrown, is a case in point. In that case, the claimant, Ms Thompson, was awarded almost £185,000 following the mishandling of her request for flexible working on her return from maternity leave. Ms Thompson had requested—prior to returning—to work four days per week and on a shorter working day (ending at 5 pm rather than 6 pm) so that she could collect her child from nursery before it closed. Her employer—a small independent estate agent—turned down the request, saying it could not afford for Ms Thompson to work part-time. Ms Thompson resigned and brought a claim against her employer for (among other matters) indirect sex discrimination, which succeeded.

The ET found on the evidence that the requirement to work from 9 am–6 pm, Monday through Friday, while ostensibly neutral, nevertheless placed more women with children at a substantial disadvantage than men with children, and that the claimant suffered from that disadvantage. The ET did not accept that the employer’s refusal of the claimant’s request, and insistence on the stated hours, was a proportionate means of achieving a legitimate aim.

In addition, whilst there is no scope under the proposed framework for employees to apply for flexible working in advance of starting the job unless the employer permits this, employers may nonetheless find it productive to have discussions about flexible working at the outset of a recruitment process. Otherwise, employers may find themselves fielding flexible working requests from new hires as soon as they join, and the potential for conflict at an early stage is enhanced.

The reality is that businesses are under greater workforce pressure to accommodate post-pandemic flexibility. Some organisations are already offering unlimited remote working to all staff, and most other office-based employers are likely to continue to operate a combination of home and office working for some time. If the changes proposed by the government under the Consultation do proceed in their current form, they are likely to place employers under a greater administrative burden by increasing the number and frequency of flexible working requests received.

Given the above, employers would do well to review their existing policies and practices to ensure that they are best placed to fairly and efficiently manage requests for flexible working.

Trainee solicitor Anna Honey contributed to this LawFlash

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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