Flexible working requests - 5 questions answered...
With many businesses already having embarked upon a phased return to the office, reluctant returners are increasingly responding by availing themselves of their rights under Flexible Working Regulations 2014 – and submitting flexible working requests.
This has always been a tricky area to navigate for employers: there is a fairly prescriptive statutory process to follow, and even if they get that right, there is the ever-present underlying threat of indirect discrimination claims.
This threat was highlighted acutely in last week’s BBC headline: “Mother refused 5pm finish wins £185,000 pay out”. Dramatic, but true - it related to the case of Mrs A Thompson v Scancrown Ltd t/s Manors [2019] - and, no doubt, sent many employers into a tailspin.
We thought it timely, therefore, to answer a few of the burning questions arising from the headlines:
1. Why was the award in Thompson so high?
Whilst a salutary tale, it is important to bear in mind that the award in Thompson was unusually high due a perfect storm of reasons. Mrs Thompson was an estate agent returning from maternity leave, the employer was fairly rigid in its requirements re. working hours, and, crucially, whilst it identified valid statutory grounds for refusing the request, it failed to explain why they were applied.
It was, therefore, left completely exposed to a claim for indirect sex discrimination, which was the claim Mrs Thompson succeeded on.
Plus, Mrs Thompson’s resulting resignation was submitted on 12 December 2019 – so this all played out just months before the first lockdown. 2020 may well be one of the worst possible years on record to look for new work as an estate agent - so Mrs Thompson was rendered unable to “mitigate her losses” during the pandemic. So her losses accrued to a much larger sum than they might have otherwise because, as an estate agent during a pandemic, she was simply unable to find new work.
So to any employer asking: will I have to pay £185,000 if I reject a flexible working request? The short answer is “no” - but, as always, the devil is in the detail - and employers do need to be familiar with the underlying legal framework and to deal with the request in a reasonable, timely and non-discriminatory manner.
2. So who has the statutory right to submit a flexible working request?
Employees with at least 26 weeks' continuous employment can make a request for flexible working under the Regs. They can make the request for any reason and the statutory scheme provides the following:
the employee triggers the procedure by making a written request;
this starts the clock running on a three-month decision period (which can be extended by agreement) in which the employer should consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome;
the employer must deal with the application in a reasonable manner;
the employer can only refuse a request for one (or more) of the eight reasons set out in the Regs (as outlined below);
only one request can be made in any 12-month period;
the employee can complain to an Employment Tribunal if the employer:
- fails to deal with their application in a reasonable manner;
- fails to notify them of the decision on their application within the decision period;
- fails to rely on one of the statutory grounds when refusing their application; or
- bases its decision on incorrect facts.
3. What do we do if we get one?
All employers should have an updated Flexible Working Policy, which sets out their process for dealing with any requests. This really is a “must have” as such statutory requests are increasingly being used at present. A good policy, which reflects the requirements of the Regs, will provide a robust framework for navigating the many potential pitfalls.
Acas have also produced some excellent documents, which are essential reading:
4. What are the grounds for refusing a request?
Where possible employers should, of course, consider seeking to find a compromise with an employee – and if they cannot grant the request outright, then perhaps suggest some alternative form of accommodation.
However, the law accepts that an employer may well have valid for being unable to accept a flexible working request. There are eight specific grounds for rejecting a request, and only these grounds may be relied on as reasons for rejection:
the burden of additional costs;
detrimental effect on ability to meet customer demand;
inability to reorganise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work; and
planned structural changes.
The question of whether a particular ground applies is really a subjective one for the employer, but it must be based on solid facts. If the application of one of these grounds is based on an assertion that is just not correct, the outcome will not be valid.
There is no statutory requirement under the Regs to include an explanation as to why the employer considers a ground to apply, but providing a cogent explanation is key - as it places the employer in a position to explain its position should be required to do so - particularly if the employee should allege that the refusal is discriminatory.
It was this explanation that was sadly lacking in Thompson.
5. What does discrimination have to do with it?
In addition to rights under the Regs, all employees have the statutory right not be discriminated against by reason of certain “protected characteristics”, which include: age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy and maternity, and marriage or civil partnership.
In the context of flexible working requests, discrimination might typically arise in relation, for example, to sex (perhaps upon the return from maternity leave, as was the case in Thompson); or religion (not wanting to work on the sabbath); or disability (failure to make reasonable adjustments).
Discrimination can be direct (i.e. the employer treats A less favourably than B because of a “protected characteristic”) or indirect (i.e. the employer imposes a “provision, criterion or practice” on all employees, but it is has a disproportionate impact on A because of “protected characteristic”).
Whilst direct discrimination claims can arise in the context of flexible working requests, claims of indirect discrimination are more common. Particularly indirect sex discrimination, as the law recognises that the burden of childcare falls disproportionately on women and, therefore, rigid requirements on working hours - although applied across the board - can have a disproportionately negative impact on women.
There is a defence to indirect discrimination claims if the employer can show the “provision, criterion or practice” to be a “proportionate means of achieving a legitimate aim”. And that’s exactly where the importance of being able to justify and explain the rationale comes in.
So if a flexible working requests cannot be granted and the employer wishes to rely on a statutory ground for refusal, simply citing the relevant statutory ground is not enough; particularly, where a “protected characteristic” could be relevant.
If a request cannot be accommodated or a compromise reached, a proper response to a rejected a request should explain the reason for applying the particular statutory ground that is being relied upon - preferably in a way which shows that reason to be a proportionate means of achieving a legitimate aim.
That way, the employer will have a potential defence to any indirect discrimination claim. As Mr Hurst, my old Maths teacher used to preach – the working out is as important as the answer! It was largely that absence of a contemporaneous explanation that proved so costly in Thompson.
For more information, do contact: john.skelly@bakerskelly.com
The above is intended as general commentary only and is not intended as a substitute for specific legal advice.
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