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Why the proposed changes to flexible working won’t make much practical difference

Written by James Tamm on 24 September 2021

As businesses finalise their return to work plans, the government is preparing to consult on the future of flexible working.

Under new proposals, employees could soon be given the right to request flexible working from day one of employment. The current right to request flexible working arrangements after six months has been in place since 2014 but hasn’t had the impact many campaigners hoped for, with TUC research revealing that even in 2019, flexi-time was unavailable to over half (58%) of the UK workforce.

The plans, which were part of the Conservative party’s manifesto, could also force employers to respond to requests for flexible working more quickly than the current maximum of three months, as well as explain why any requests were refused.

The proposals will be welcome news to many employees, particularly those who begrudge being brought back into the office. And with more than two thirds (71%) of employers reporting that the increase in homeworking has either boosted or made no difference to productivity, changes to make flexible working the default seem to make sense.

But will the proposals actually make any tangible difference to how requests are dealt with, or who’s in the driving seat? From a legal point of view, possibly not.

Not the sea change employees might expect

While the headlines seem to suggest that employers will soon be forced to accommodate demands for to flexible working, in reality, the proposed changes won’t make much practical difference.

The problem is that the flexible working regime doesn’t have any teeth. Requests can be turned down for any one of eight specified reasons, and if an employee isn’t happy with the employer’s decision, recourse under flexible working legislation is limited.

While they may be able to take their employer to a Tribunal for not dealing with a request in time, turning it down for reasons outside of the eight prescribed in the legislation, or not dealing with the application in a reasonable manner, if the employer has done all of that but the employee is simply dissatisfied with the outcome, there’s little they can do except follow the company’s procedures for appealing.

Even if an employee’s claim is successful, the maximum penalty is only eight weeks’ pay, so the financial risks at relatively low and arguably not enough to dissuade employers from rejecting a request if they are intent on doing so.

None of this will change with the government’s proposal, which simply eliminates the need to wait six months from staring a job to make an application – a very minor amendment. If the government really wanted to champion flexible working, it could require employers to justify their refusal and, if they can’t, increase the penalty for having denied the request. However, that isn’t on the table.

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The real issue: indirect sex discrimination

While rejecting an employee’s flexible working request is relatively low-risk, and the proposals do little to change that, employers must still be mindful of indirect sex discrimination arguments that may stem from this.

In a nutshell, more women than men need to amend their working pattern to fit their caring responsibilities, so any refusal to allow flexible working is much more likely to adversely impact female employees.

Such claims can be substantial. In fact, you may have heard about the recent case involving an estate agent who was awarded £185,000 in damages after her request to leave work earlier to collect her daughter from nursery was denied. This was an indirect sex discrimination claim, not any claim under the flexible working regime, highlighting that it is in fact these sorts of issues that pose the biggest threat to employers.

So, will it be more difficult to reject a request?

As well as having to respond to requests more quickly, the government’s proposals would also force firms to explain why any requests were refused. With the pandemic presenting employees with the perfect opportunity to prove that they can work just as productively from home, some legal professionals are suggesting it will now be more challenging for employers to deny flexible working requests.

However, from a strictly legal perspective, the same rules will still apply. Men or women who make a request for reasons other than childcare – or some other protected characteristic – have virtually no recourse.

What’s more, if a contract specifies a place of work, employers have every right to insist that an employee returns to it. They will be simply enforcing the terms of the contract and could discipline anyone refusing to comply.

All of that said, denying flexible working requests isn’t just a legal issue – it’s an employee relations issue as well. While the law hasn’t changed, what has changed is the job market. With a growing number of employers now embracing flexible or hybrid working, if you’re not prepared to accommodate employees’ wishes, there’s every chance they may find another employer who will.

Got questions or concerns about flexible working?

Flexible working can take many different forms: part-time working, term-time working, job sharing, compressed hours, annualised hours, flexitime and – most relevant right now – remote working or a ‘hybrid’ approach.

Whatever your situation, and whatever type of flexible working you are exploring, our Employment Law and HR and Health & Safety specialists can help you navigate the process, prevent legal missteps, and preserve productivity and engagement wherever your people are based.

For advice and support, call 0345 226 8393 or request your free consultation using the button below.

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