February 16

Flexible working requests – what is an employer’s obligation?

As more businesses look to encourage people back to the office, how flexible should they be and could refusing flexible working requests constitute indirect discrimination?

Flexible working is evolving rapidly and an increasing number of people are seeking more freedom over when, where and how they fulfil their role. Employees are seeking to break out of the traditional and rigid structure of working 9-to-5 in the office and employers have seen a sharp rise in flexible working requests since the pandemic.

At the end of 2021 the government consulted on introducing a day one right to request flexible working but as yet no decision has been made.

Although there is not a burden or an obligation on an employer to agree to all flexible working requests, it is imperative that employers understand how to handle flexible working requests and consider the risks associated with them.

Although working from home is unlikely to become a strict legal right for everyone, employees who are called back into the office after having enjoyed the benefits of hybrid or remote working may turn to statutory flexible working requests. It is important to remember, also, that women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws.

Seeking flexible working for childcare reasons:

Two recent cases have made it clear that indirect sex discrimination may be a successful basis for a claim after refusal to accommodate a woman’s request for flexible working to accommodate her family.

Indirect discrimination is concerned with decisions or policies which, in practice, have the effect of placing a group of people with a particular protected characteristic at a disadvantage. Sex is included as a relevant protected characteristic under the Act.

In one case a woman asked to finish at 5pm instead of 6pm to enable her to pick up her child from nursery. Her employer refused the request giving, amongst others, the following reasons: an inability to reorganise work among other employees and an inability to meet customer demand.

The tribunal considered that the employer’s practice had put the woman at a disadvantage because of her sex. It was argued that the practice for sale managers to work full time 9am-6pm, Monday to Friday, was a practice which placed women with children at a substantial disadvantage compared with men with children. Therefore, the tribunal upheld the following:

• refusing the employee’s request was indirect discrimination
• whilst the employer’s business concerns were recognised, they did not outweigh the discriminatory impact on the female employee.

Another recent case ruled that employment tribunals must accept as fact that women are still more likely to bear the primary burden of childcare responsibilities and this often hinders their ability to work certain hours. There is childcare disparity, this must be accepted as a ‘fact without evidence’ and the employment appeal tribunal held that….“While things might have progressed somewhat in that men do now bear a greater proportion of child care responsibilities than they did decades ago, the position is still far from equal.”

Tips for employers

The above recent cases have reaffirmed the need for employers to carefully consider all flexible working requests. Before rejecting proposed changes, employers should not only assess their practices and business needs, but also ensure consideration is given to whether the employee making the request may have a protected characteristic and whether they are likely to suffer a disadvantage.

Employers need to consider the following:

1. Try to be as flexible as possible and treat the request as a conversation with the employee in order to identify a pattern that works for both parties. If the request has been refused for a business reason, can an alternative working arrangement be agreed with the employee? Even if this proves not to be possible, this will assist employers in demonstrating that they have acted reasonably.

2. Offering a trial period may provide a way to assess the impact of modified working arrangements in the workplace and whether the request can work in practice.

3. When considering a flexible working request, employers should keep clear records of their reasoning when making decisions.

4. Employers should ensure they remain fair and consistent in their treatment of flexible working requests.

5. Employers should consult their existing policies and practices for flexible working, which ideally will incorporate the statutory requirements and principles outlined above and from the Acas code of practice.

For assistance on flexible working requests, do contact: nicola.goodridge@goodhr.co.uk or call +44(0)7917 878384.