Have you made a flexible working request recently?

About the Author

Name: Sue Ball

Title: Principal Lawyer, Head of Employment & Southern Region

Email: sue.ball@verisonalaw.com

Telephone: 023 9250 5500

Review Solicitors

Previous studies have suggested that around 54,000 women may lose their jobs due to pregnancy or maternity every year. With the proper utilisation of flexible working policies and procedures, this is wholly avoidable.

Whilst any employee with 26 weeks or more of continuous employment can make a flexible working request, in the majority of cases it is women who are making these requests as they tend to be linked to some kind of caring responsibility.

However, the government have recently responded to a consultation to confirm that they intend to make the “right to request” a day one right.

This is a crucial advance for workers’ rights but also a sign that the common workplace is changing, if only to be the start of a conversation around departing from the traditional 9-5, five day working week (even before the pandemic a survey showed that only 6% of people in the UK still work 9-5).

Research has also suggested that the availability of good quality part-time and/or flexible jobs could bring many people with disabilities and those with caring responsibilities into employment.

How do I make a flexible working request?

A request can only be made once every twelve month period. In order for a request to be valid, it must include at least the following:

  1. The changes the employee would like to make;
  2. The date in which the employee would like those changes to be effective from; and
  3. What impact the employee thinks the changes could have on their employer and how they could be dealt with in practice.

Employees should be aware that an employer is under a duty to deal with a flexible working request in a reasonable manner and within three months of the request being made (unless otherwise agreed with the employee).

An employer does have relatively wide discretion to reject a request in whole or in part. An employer can reject a request based on one of the following reasons:

  1. If accepting the request would incur significant additional costs;
  2. The inability to reorganise work amongst existing staff (i.e. a significant reduction in hours);
  3. The inability to recruit additional staff;
  4. If the proposed changes would prove to have a detrimental impact on the quality of the work done or service delivered;
  5. The change would have a negative impact on performance;
  6. The request would make it difficult or impossible to meet with customer demand;
  7. There is an insufficient amount of work to fill the hours proposed in the request;
  8. The request is not aligned with any planned structural changes to the business.

However, if an employer bases their decision on incorrect facts or fails to deal with the request then an employee has the potential to claim up to £4,352 in compensation. An employer should also consider whether it can agree to a request with modifications to the original request or whether it would be appropriate to have a short trial period to assess whether the flexible working could work.

If an employer terminates employment because a flexible working request has been made or proposed, this can give rise to a claim for automatic unfair dismissal regardless of how long you have been employed for.

The refusal of a flexible working request can also give rise to indirect sex discrimination claims. An example of this would be a practice of insisting all employees work a specific pattern or block of hours or refusing to vary or compress working hours for employees. This can often put women at a substantial disadvantage compared to men and in the absence of an objective justification can lead to successful claims.

In the recent case of Mrs Alice Thompson v Scancrown Ltd T/a Manors: 2205199/2019, Mrs Thompson successfully won a claim for £185,000 in compensation as the result of an employer’s failure to fairly consider a relatively typical flexible working request for a four day working week and compressed hours (to meet childcare responsibilities). This case also highlights the risk of not considering a modified flexible working arrangement as an employer (effectively a “counter-offer” of flexible working). It is worth noting that there is context to this claim in that it followed discriminatory conduct by the employer prior to the flexible working request being made which partly explains the high level of compensation awarded in this case.

Whilst there is no avoiding the fact that flexible working requests and refusal of the same is largely an issue faced by women, it would be remiss to forget men when it comes to these requests also. If a flexible working request is wrongly refused and/or there is rather an inflexibility from an employer towards a man’s request (i.e. including childcare reasons) then this can give rise to direct sex discrimination claims.

The COVID-19 pandemic has proven that employees can be trusted to be productive and valuable assets to their employer under a system of agile working and utilising technology. Employers should also be recognised for moving outside of the norm and their comfort zones to modernise how their staff work.

It is possible for employees and employers to “make flexible working, work beyond a crisis”.

However, employees require the support of employment law expertise and support of campaigning groups such as Maternity Action to make a successful flexible working arrangement a success and where that is denied unfairly, to seek legal recourse.

If you require assistance with making a flexible working request, believe your employer has failed to deal with your request in the correct manner or is discriminating against you in how it has responded to a request please contact our team using enqs@donnelly-elliott.co.uk.