The UK Government recently announced its proposed flexible working reforms and launched a consultation on its proposals. The Government proposes that employees should have the right to request a flexible working arrangement from their first day of employment. As employers will already be aware, currently employees can only submit a flexible working request once they have been in continuous service for 26 weeks.
The Government’s consultation will also consider:
- if employers should respond to flexible working requests in a shorter amount of time than the current three-month period;
- if employers should be required to consider alternative arrangements when refusing flexible working requests;
- a review of the administrative process for flexible working requests;
- whether the eight existing commercial reasons enabling employers to deny flexible working requests remain legitimate; and
- how best to support the need for temporary and ad hoc flexible working.
Recent case law developments affirm that employers must dedicate sufficient time and resources when assessing flexible working requests. In a recent decision (Thompson v Scancrown Ltd, trading as Manors), the Employment Tribunal found that an employee was indirectly discriminated against on the basis of sex when her flexible working request to work fewer hours in order to pick her child up from nursery was refused. The Employment Tribunal scrutinised the employer’s commercial justifications for refusing the request - increased costs, an inability to reorganise staff, and the detrimental impact this arrangement would have on meeting customer demand - and found them unconvincing. The claimant, whose annual earnings were approximately £120,000, received an award of £185,000 for loss of earnings, loss of pension contributions, and injury to feelings. This decision serves as a reminder that employers must properly consider and document commercial justifications for refusing flexible working requests and cannot rely on superficial analyses.
The risk of refusing flexible working requests is heightened for employers when assessing requests from female employees. The Employment Appeal Tribunal recently held (Dobson v North Cumbria Integrated Care NHS Foundation Trust) that in claims for indirect discrimination on the basis of sex, there is no requirement to provide evidence that women bear a greater burden of childcare than men. Tribunals can take it as established that women assume greater childcare responsibilities and therefore are disproportionately disadvantaged when flexible working arrangements are not sufficiently considered.
In light of the government consultation and recent legal developments above, employers must ensure they have robust and up to date procedures and policies in place to address flexible working rights.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Employment practice.
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