By Dee Coakley
Is flexible working a right or a privilege? As we emerge from a two-year period in which conventional working practices have gone out of the window, it’s a question that has never been more keenly contested.
According to LinkedIn’s latest Global Talent Trends study, employees view work-life balance as even more important than compensation and benefits, with flexibility playing a crucial role in ensuring happiness at work.
The culture has shifted. Employees increasingly expect that employers will meet their requests for greater flexibility, and over the last year, the Employment Tribunal (ET) has seen a significant increase in the number of claims due to flexible working requests being rejected.
But from a legal standpoint, what exactly are employers’ obligations to support flexible working? And how can they best respond to requests in a way that reduces the risk of miscommunication, displeasure and the possibility of escalation?
The right to request flexible working
More than anything, the recent spate of Employment Tribunal cases has revealed the extent to which employers are unclear about what the ‘right to request flexible working’ means.
In fact, most UK employees have had this right since 2014. Broadly, there are three main types of requests open to them: a change to the total hours worked, a change to the times in which work is carried out, and a change to the place of work.
But in reality, requests come in different shapes and sizes. They can be made for part-time working, flexi-time, shift-working, staggered hours, job-sharing, home-working – all fall under the right to request flexible working, provided that an employee makes the request formally via the agreed company channels.
To make a statutory request for flexible working, employees must be working under a contract of employment (contractors, consultants and agency workers are usually ineligible), and they must have been in the employment for six months. And of course, even if they meet this criteria, employers are not necessarily bound to accept the request. There is no inherent right to flexible working – only the right to request it – and if employers can justify their refusal, a similar request cannot be made for the next 12 months.
However, there is a requirement to treat each request seriously; indeed, rejections can only be made on the grounds of a lack of eligibility or a prescribed statutory reason – for example, the burden of additional costs, an inability to reorganise work among existing staff, or a conflict with planned structural changes in the organisation.
Best-practice request handling
Employers need to ensure they have instilled processes to handle flexible working requests regardless of what employees are currently demanding. There should be formalised written procedures to allow any requests to be dealt with promptly and fully, including a stated time period for responses. For example, employers should normally be looking to notify employees of their decision within three months, unless there’s an unforeseen delay, in which case this too needs to be clearly communicated and an extension agreed.
Crucially, employers must assess every request on its merits. Tribunals tend to be highly critical of employers perceived to have wilfully set out to reject requests, regardless of the individual circumstances. Employers should always identify the potential barriers to granting the request and communicate these with the employee to see if there’s a way to overcome them. It may not be possible to grant the request in full, but through open communication viable alternatives can often be agreed.
Once a decision has been reached, it should be explained to the employee fully and clearly. Failure to do so, and an employer could be accused of making a rejection based on ‘incorrect facts’ once the case reaches tribunal.
The consequences of rejection
Employment Tribunals have very limited power to award compensation to employees whose requests are judged to have been wrongly rejected. The current maximum permitted compensation is just eight weeks’ pay, with a statutory cap of £544 per week, limiting claims to no more than £4,352.
However, there is a link between the right to request flexible working and other statutory protections, most notably, the right to protection from unlawful discrimination. Hence, all employers need to consider whether there are any protected characteristics (e.g. gender, disability, race) that could be in play before making rejections. Employers with a blanket ban on flexible working could otherwise find themselves on the receiving end of a discrimination claim. And in the case of discrimination, tribunals are given far more license to scrutinise employers’ decisions, with no limits to the compensation that can be awarded.
To illustrate this point, in the recent Thompson v Scancrown Ltd case, a working mother at an estate agency was awarded almost £185,000 after being denied a flexible working request to work shorter hours and fewer days. Her employers provided statutory reasons for denying her request, keeping her working hours at 9am-6pm, five days per week. However, the tribunal found that, under the terms of the Equality Act, she had been indirectly discriminated against, as nurseries generally close at 6pm, putting her – and any women with similar childcare commitments – at a substantial disadvantage. If the employer had taken more time to consider this request or any possible alternatives to allow the employee to collect her child on time, then this claim would likely never have been made.
In another similar case, Giles v Geach t/a Cornelia Care Homes, the claimant Ms Giles was informed that, despite previously working 16 hours a week in the office and 16 hours of overtime primarily from home, she was now required to work full-time hours solely in the office. As Ms Giles had childcare commitments, she made a flexible working request to continue her prior arrangement. When this was rejected, she brought her claim to a tribunal, which granted her £30,000 in damages on the basis of indirect sex discrimination.
A question of reasonable adjustments
Such cases are even more frequent when an employee is disabled, as employers are legally obligated to make reasonable adjustments to working conditions, which will necessarily vary from employee to employee and their specific disability. When a disabled or potentially disabled employee makes a request for flexible working for reasons connected to their disability, employers must carefully consider whether rejecting the request would amount to a refusal to make a reasonable adjustment.
The scope for challenging these decisions is broader than you might think. For example, an employee with severe insomnia may request a shift in working hours to accommodate their disrupted or reduced sleeping pattern. Assuming that their work can be completed outside of the usual work hours, rejecting this request could be considered a failure to make reasonable adjustments – another reason why fully understanding employees’ reasons for making a flexible working request is so important to avoid miscommunication and unnecessary legal escalation.
Why you should consider offering flexible work now
Since the onset of Covid-19 two years ago, millions of desk-based employees have become accustomed to a certain level of flexibility that is now being threatened by the return to the office and reintroduction of pre-pandemic ways of working. It’s an issue that is already provoking many people to consider changing jobs; but it’s also encouraging more employees to fight for greater flexibility within their existing roles. It is therefore vital that employers understand the correct way to deal with flexible working requests and the potential consequences if they do not factor in the discriminatory aspects of rejecting them.
Not only that but, in the age of Glassdoor and social media, there’s also the reputational damage to consider when rejecting claims, even if employers believe they have sound reasons for doing so. Business leaders won’t want to feel as though employees are holding a gun to their head, but as the working world at large embraces flexible working and remote-first roles, those who aren’t updating their policies could find themselves in the firing line.
Extending the right to request flexible working
Late in 2021, the UK Government completed a consultation about making flexible working requests a ‘day one’ right, as well as considering whether the ‘every 12 months’ rule should be cut to three months.
While the plans have since been postponed, which has prompted backlash from trade unions, there can be little doubt about the direction of travel. We have entered the age of flexible working, and employers would be well-advised to strengthen their flexible working policies and request processes before further legislation arrives. Indeed, LinkedIn’s study shows that more than 80% of C-level executives are already changing workplace policies to offer greater flexibility.
Employers may not be able to grant every single request that comes in, but they need to show willingness to support employees, be seen as looking for viable alternatives wherever possible, and communicating openly so that decisions are understood and accepted. The number of flexible working requests will only increase as offices begin to fully reopen – it’s in every employer’s interests to resolve these constructively within the workplace rather than the costly confines of the Employment Tribunal.
About the Author
Dee Coakley is Cofounder and CEO of Boundless – a global employment platform that supports flexible employment across borders. She has held leadership positions at fast-growth startups such as Masabi, Bizimply and Axonista, and has overseen operations in multiple countries over the past decade.