Government consultation on flexible working

Written by: Adam Bernstein
Published on: 1 Mar 2022
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Image: © aleutie / Adobe Stock

Image: © aleutie / Adobe Stock

Flexible working is in vogue. While it’s not a new concept, the pandemic brought it into the foreground.

Last summer Vet Times covered a private member’s bill put forward by Tulip Siddiq MP. Unlikely to gain traction, the Government published its consultation paper seeking views on the same subject from which it would legislate.

Government thinking

Six key areas for discussion were outlined in the consultation, “Making flexible working the default” – namely, giving workers the right to request flexible working from day one. Presently, the right requires 26 weeks’ continuous service; examining the reasons that employers can use to refuse a request; requiring employers to consider alternatives to the request if they need to refuse it; considering if employees should be allowed to make more than one request a year; examining if the current three-month time frame that employers have to consider any request should be shortened; and how to get more employees to make more temporary flexible working requests.

Beyond this, the Government is looking at the flexible working methods such as job sharing; flexitime; compressed, annualised and staggered hours, as well as phased retirement. In other words, it’s not just about working from home.

The consultation ran until 1 December 2021. Employers can bookmark the page on GOV.UK for changes.

Potential impact on employers

As to what the proposals mean, it should be recognised that they do not give employees the right to work flexibly and do not alter the basic position that the right is merely a right to request. The Government has taken the line that it should be up to employers to decide what they should agree to and what they can reject (based on the eight reasons set down in law).

That said, employers are required to respond to requests reasonably. Even so, no plan exists to introduce a reasonableness test that would be used to judge an employer’s response to a request.

It should be noted that the Acas Code of Practice can be considered by an employment tribunal when examining relevant cases. However, the potency of employees’ position is that they can nevertheless bring a discrimination claim should an employer choose to ignore its obligations.

Should the consultation lead to enacted proposals, employers will no doubt see an uptick in the burden placed on them administratively, as employees begin to make more flexible working requests if for no other reason that all employees will be able to make statutory flexible working requests, rather than just those with 26 weeks of continuous service. Further, the potential exists for them to make more than one request a year.

It’s even possible that those still in their probationary periods will make flexible working requests (although this might be muted as individuals may think twice about upsetting the apple cart too early on in their employment).

And, of course, the distinct possibility exists that employers will have to respond to flexible working requests more quickly than they must do now while also considering any alternatives to the request made. Also, with more requests being made comes the heightened risk of indirect discrimination claims being made following a refusal – employers should demonstrate, objectively, the statutory reasons why the job must be done in a defined way.

With the background of employees having an almost unfettered right to bring an employment tribunal claim following the refusal of a flexible working request, it’s logical that employers will fare better if they can hammer out a compromise, or at least try out the requested flexible working arrangements. Fundamentally, this could help an employer defend its position in the tribunal if it can demonstrate that it’s acted fairly.

At least two reliefs for employers exist – that the Government is not planning to introduce a statutory requirement for employers to highlight in job advertisements whether flexible working is available, and plans to require employers with more than 250 employees to publish their flexible working policies seem to have been filed for the moment.

Risk of discrimination

As noted before, and highlighted in theHRDIRECTOR, employers need to be alive to the risk of an employment tribunal claim based on discrimination. The publication quotes a September 2021 case – Thompson v Scancrown Ltd, trading as Manors. In the case, Alice Thompson worked for Manors estate agents, based in London. The company had around 10 employees and catered to wealthy clients from overseas, particularly in the Middle East.

Ms Thompson was employed as a sales manager and two years after first being recruited she was praised by her manager, who told her “thanks to you, the office is doing well”.

On looking to return to work after maternity leave, Thompson had asked if she could finish work an hour earlier at 5pm and work four days a week, instead of five, to accommodate for her daughter’s childcare arrangements.

The manager refused the request and Thompson resigned. She then struggled to find work after the UK went into COVID-19 lockdown in March 2020 as the property market was adversely affected.

Thompson said her request for flexible working wasn’t “seriously considered” and that she would have been happy to hear a counter offer from her employer. Instead, she said her request was “shut down at every avenue, not listened to, not considered and I was left with no other option but to resign because I couldn’t make it work”.

She won her case and the Employment Tribunal ordered Manors to pay Thompson £184,961 as “compensation for indirect discrimination because of sex”.

Summary

It’s quite clear that employers will be pleased that the Government’s proposals are less austere and overarching than had been expected. Employees should be happy, too.

Even so, if the proposals find their way into law, employers will see an increase in both the number of flexible working requests they receive, and the time and effort that they have to invest in dealing with them – all at a time when the pandemic has refocused employees’ minds into seeking more flexibility from the workplace generally.