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Flexible working

Dealing with flexible working requests

Posted on: December 8th, 2021 by Ginny Hallam

There may be little flexibility in the process for dealing with flexible working requests according to the Employment Appeal Tribunal (EAT) in a recent case. Here’s the need-to-know detail:

Background

After the employer had rejected a flexible working request, an appeal hearing to review that decision was delayed beyond the three-month time limit. Despite the employee’s agreement to attend the appeal hearing, the employee claimed there was a breach of flexible working legislation. The EAT agreed, holding that the employee had consented to attend a delayed appeal hearing, but not an extension to the three-month period that the employer had to deal with the request.

Practical takeaways

Agreements in writing – you can legitimately extend the three-month decision period (if required) with the employee’s specific agreement. Secure the employee’s agreement in writing to avoid any potential confusion or arguments to the contrary.

Don’t delay – the government are proposing to allow employees to request flexible working from the first day of their employment and to reduce the current three-month decision period. Following the case above and the proposed changes on the horizon being diligent with your decision-making is now even more important.

Metrics – don’t forget that no matter how quickly you respond to requests, being armed with clear, objective metrics is paramount to justify any requests you turn down.

If you need advice or support in managing flexible working requests – Intelligent Employment is here to help. Find out more.

This update is accurate on the date it was sent (08 December 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Proper consideration of flexible working requests

Posted on: October 22nd, 2021 by Ginny Hallam

Two recent cases (here and here) have shown that failing to give proper consideration to flexible working requests can give rise to successful sex discrimination claims.

Background

Both cases related to mothers returning from maternity leave and requesting to work flexibly to manage their child-caring responsibilities. The employers failed to provide evidence to show they’d given adequate consideration of the proposals, with the tribunal deciding this amounted to indirect sex discrimination in both cases.

Practical takeaways

Childcare disparity – women are recognised by tribunals as facing a childcare disparity. Failure to objectively assess and evidence why you’re unable to accommodate a request to work flexibly opens the door for arguments of discrimination.

Training – anyone responsible for making a decision on flexible working requests should have thorough training and a consistent system to enable them to identify, consider and respond appropriately to the request.

Trial – consider a trial if you’re unsure whether the proposal will work – capture the terms in writing so everyone is on the same page.

Facts and figures – any refusal should be supported by facts and figures. Simply saying ‘the costs will be too high’ leaves open arguments of discrimination.

With the government proposing a day-one right to request flexible working, a spike in requests is likely. Taking a proactive approach now can help you get ahead – here are our previous updates to help if you’re in a flexible working fix.

If you need support in managing future flexibility and flexible working requests, Intelligent Employment is here to help. Find out more.

This update is accurate on the date it was sent (26 October 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Government to announce day-one right to flexible working

Posted on: September 22nd, 2021 by Ginny Hallam

Tomorrow, the government is set to announce proposals for employees to have the right to request flexible working from their first day of employment. Here’s what you need to know:

Day-one – employees will no longer have to wait until they’ve been employed for 26 weeks before making a flexible working request. You will be obliged to consider requests from the first day of employment.

Responding to requests – the current three-month time period to respond to flexible working requests is set to be reduced meaning you’ll need to provide a quicker response.

Refusing requests – if you turn down an employee’s request, you will need to provide an explanation and suggest an alternative work arrangement. Subject to tomorrow’s full announcement, your refusal is likely to need more robust, objective justification than the current reasons for rejecting a request.

We’ll update you once the full detail has been provided and when we know the new right is set to come into force. If you need support in managing future flexibility and flexible working requests, Intelligent Employment is here to help. Find out more.

This update is accurate on the date it was sent (22 September 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Future flexibility for all?

Posted on: September 9th, 2021 by Ginny Hallam

A Unite union candidate has pledged to fight for the legal right for everyone to ask to work from home. Here are our thoughts…

Hybrid approach – not everyone wants to be at home all of the time – 55% of employees would be happy to split their time between home and the workplace. This could be down to difficulties creating boundaries, feeling compelled to put in more hours at home, or missing the cultural and collaborative value of spending time in person with colleagues.

Beyond homeworking – flexibility isn’t just working from home. Varying hours to start later or finish earlier, compressing hours into fewer working days, or working term-time only (to name a few) are all possibilities.

Tribunal troubles – a ‘one size fits all’ policy can be detrimental to specific groups (such as those with childcare responsibilities). A recent case highlights that employers are expected to identify the ‘childcare disparity’ still faced by women and address that within their policies.

Communication is key – working practices and preferences are constantly evolving – you aren’t expected to have all the answers! An open dialogue will help colleagues to share ideas and concerns, and to find a solution that works for all (including your business). Using trial periods to your advantage can help manage expectations and address adjustments (make any trial period clear at the outset).

If you need guidance or support in finding your flexibility, Intelligent Employment is here to help – find out how.

This update is accurate on the date it was sent (9 September 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

“Childcare disparity” – new tribunal guidance

Posted on: July 20th, 2021 by Ginny Hallam

It’s still accepted by tribunals that women face a “childcare disparity”. This case is a reminder that employers may face successful discrimination claims if their decisions put childcaring females at a detriment.

Background

An NHS Trust introduced a new flexible working policy requiring all employees to work some weekends. This employee was unable to comply because of her childcare responsibilities for her three children (two with disabilities). She was subsequently dismissed and brought a claim for unfair dismissal and indirect discrimination.

Practical impact of the Employment Appeal Tribunal’s (EAT) decision

This means that when you consider introducing a provision, criteria or practice (PCP) potentially putting those caring for children at a detriment, you should bear in mind that the PCP opens the door to possible sex discrimination claims based on the EATs guidance. Your choices are to adjust the PCP so that there is no such detriment or be ready to objectively justify it.

While the EAT case centres around the introduction of a flexibility policy, it’s often the case that employers are faced with decisions that may put those caring for children at a detriment. If you received a furlough request from a female when schools were closed and decided to operate a blanket refusal, you could have found yourself on the wrong end of a sex discrimination claim (for the reasons set out by the EAT) in respect of which you may have needed to objectively justify the PCP.

Intelligent Employment is here to help if you need guidance and support introducing new flexibility policies- find out more.

This update is accurate on the date it was sent (20 July 2021), but may be subject to change which may, or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.