Will Clift discusses the government’s response to the consultation on updating flexible working laws (published earlier this month), in the context of the post-pandemic workplace.
Earlier this month, the government published its response to last year’s consultation on updating flexible working laws. The Employment Relations (Flexible Working) Bill, which is currently passing through the Committee stage in Parliament, will implement most of the changes referred to in the consultation response.
Initially, there was a proposal to grant all workers the right to flexible working automatically. However, this right will not be introduced, and it will instead remain a right for employees to request flexible working. The major changes that will be introduced if the Bill is passed are as follows:
- Employees will have the right to request flexible working from day one of their employment (rather than from 26 weeks under the current regime).
- The requirement for employees to explain what effect they think the change would have on the employer and how any such effect could be dealt with, has been removed.
- Employers will be required to consult with their employees, with a view to exploring alternative options, before rejecting a flexible working request.
- Employees will be permitted to make two flexible working requests in any 12-month period (rather than one under the current system).
- Employers must respond to requests within two months (rather than three, as currently required).
Unsurprisingly, a number of respondents to the consultation highlighted that standards of work and performance are key considerations when reviewing a flexible working request, including in the context of homeworking, which has of course become more commonplace since the pandemic. Employers with such concerns may be reassured that, under the new regime, they will retain the right to reject a flexible working request for one of the eight statutory grounds, including the burden of additional costs, detrimental impact on performance, or ability to meet customer demand.
That said, the introduction of a requirement to consult employees about exploring alternative options before rejecting a request, means that employers will be expected to be more thoughtful and rigorous about finding ways to accommodate flexible working requests. This is in keeping with a growing expectation, since the onset of the pandemic, that employers should accommodate increasingly more flexible working arrangements, largely in the form of permitting employees to work from home for at least part of the week.
In view of this, employers would be well advised to bear in mind that, even if they have complied with their obligations to consider a request under the flexible working regime, there is a risk that employees will allege that the rejection of their request nonetheless amounts to indirect discrimination under the Equality Act.
By way of reminder, indirect discrimination can arise where an employer’s “provision, criterion or practice” (a “PCP” – which can include a decision on a flexible working request) applies equally to a group of people and in principle is not intended to have a discriminatory effect, but in practice disadvantages people with a particular “protected characteristic” (such as gender or race). However, if an employer can show that the PCP in question, whilst discriminatory, was justified as a “proportionate means of achieving a legitimate aim”, then it will not amount to indirect discrimination.
In recent years, a number of female employees have successfully argued in the Employment Tribunal that an employer’s decision to reject their flexible working request amounted to indirect discrimination because it disproportionately disadvantaged them as mothers with childcare responsibilities, and could not be justified. Equally, those with other protected characteristics may also be disproportionally disadvantaged by a rejected request (such as a religious employees requesting to vary their working hours, in order to accommodate their religious practices).
With that in mind, when considering a flexible working request, employers should ensure that, before making a decision, they have carefully balanced the negative impact that the proposed arrangement may have on the business, against the potentially discriminatory effect on the employee. In addition, crucially, if the employee’s request is not acceptable in the form presented, the employer should explore any alternative ways in which an employee’s requirements (such as childcare or the need to attend prayers) might be accommodated. One example given in the consultation response is that, if it is not possible to meet a request to change an employee’s working hours on all of requested days, the employer should consider making the change for certain days instead.
With respect to homeworking, employers should be mindful that, following the sea change ushered in by the pandemic, if an employee can demonstrate that their role could be (or has been) effectively carried out from home, Employment Tribunals are likely to be sceptical of a refusal to allow homeworking (for at least part of the week), in circumstances where that refusal may have a discriminatory impact.