We recently read an article about an employee who was awarded £185,000 by an employment tribunal due to suffering indirect sex discrimination. The employee wanted to return to work after maternity leave and submitted a flexible working request so she can pick her daughter up from nursery. Her request was rejected, and no alternatives were offered. This led to the employee having to resign and take her case to an employment tribunal.
The tribunal ruled that the company’s failure to support her flexible working request put the employee at a disadvantage and she was awarded £185,000.
With employees returning to the office, you may face a higher volume of flexible working request. Many people enjoyed the flexibility that working from home during the pandemic offered and are dreading going back to the office full time. In addition, it’s time to put a plan in place to explore accommodating these employees and avoid being presented with a similar case.
It’s not acceptable just to reject a request because you think it might open the floodgates for others to make a flexible working request. Every request should be looked at on its merits.
Special consideration needs to take place, particularly if the employee fits one of the protected characteristics of the Equality Act. In this case above, the employee successfully won her case on the grounds of sex discrimination. However, you could have an employee approaching retirement looking to work more flexibly, and rejecting such a request without proper consideration, could leave you exposed to a claim on the grounds of age discrimination.
Employees Rights
Employees have the right to submit a flexible working request if they have been employed with the business for at least 26 days. This also applies if legally classed as an employee. They can also ask for flexible working if they haven’t made a request within the last 12 months.
Flexible Working Requests can include:
- Reduced hours
- Start and finish time changes
- Flexitime
- Compressed hours
- Remote working
- Job sharing
The changes requested could be for every day, specific days, shifts, or specific weeks during school term. Employees can also request this for a limited time such a couple of months.
Reviewing The Flexible Working Request
Once your employee has approached you to explore a more flexible way of working, you must then ask them to put this request in writing. However, It’s important to talk to your employee, understand the flexibility they need, and look for ways you can accommodate this. If the request isn’t possible for your business, look for a compromise that will help. These compromises can include hybrid working, and shift swapping. Only reject a request if there’s a valid business reason.
Legally, you must respond to your employee within 3 months with a decision.
The Flexible Working Request Proposal
The governmernt have released a proposal that will allow employees to request flexible working from day one of starting their job. Carers will also gain the right to a week’s unpaid leave. This means that employees will be able to make one request for flexible working a year no matter when their employment began. As we highlighted previously, this is currently 26 days after starting.
The proposal also suggests that the government will analyse the current three month period that an employer has to respond to a flexible working request and explore whether this time can be reduced. The government are considering these changes in hopes of providing more opportunities to new parents, carers, and people with disabilities.
Business Secretary Kwasi Kwarteng said:
‘’Empowering workers to have more say over where and when they work makes for more productive businesses and happier employees.
It was once considered a ‘nice to have’, but by making requests a day one right, we’re making flexible working part of the DNA of businesses across the country.’’
We will keep you updated when/if this proposal will become part of legislation.
If you can offer more flexible working then we encourage you to do so. This will help you retain good employees and also build a better relationship with them. Contact us on 01383 668178 if you would like any further support on all things HR.