In the post-pandemic workplace landscape, employers are trying to entice employees back to the office. The question is what type of flexibility employers should be offering and what scope do businesses have in refusing requests for flexibility. The government in 2019 consulted on providing day one rights for employees to be able to request flexibility rather than having to wait 26 weeks. However, this consultation is yet to progress into any change in law.
What are the risks of refusing flexible working requests?
Although the statutory framework allows employers significant discretion when deciding to grant flexible working requests the scope of refusal is now being more scrutinised as new cases emerge. It is becoming clear that refusals must be legitimate and must not indirectly discriminate against the employee. It is critical that employers understand the risks attached to any refusal.
A sharp rise in requests are presenting problems for employers as many struggle to justify a full return to the office after long periods of time away using remote or hybrid model working. The flexible working framework was always intended to provide safeguards of discrimination including those with childcare responsibilities.
A case from 2019 highlighted how a refusal to modify hours to accommodate childcare responsibilities was deemed indirect sex discrimination. The Claimant was employed as a sales manager in a small estate agency. The employee had until her maternity leave usually worked 9am to 6pm but wanted to finish at 5pm when returning to the workplace after maternity leave. The request was made so she was able to pick up her child from nursery. The employer after a formal flexible working process refused the request citing five business reasons. After consideration at tribunal it was deemed the refusal amounted to an act of indirect discrimination.
The Legal Position
To understand why, it is important to understand what indirect discrimination is and how it occurs.
Section 19 of the Equality Act 2010 (“the Act”) defines indirect discrimination:
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.”
In this case, the indirect discrimination is concerned with the working hours which were being operated across the management team. In practice, it had the effect of placing a group of people with a particular protected characteristic at a disadvantage. It was concluded that the practice of requiring sales managers to work 9am to 6pm placed women with children at a significant disadvantage.
To defend this point the employer would have to show that by refusing the request was a proportionate means of achieving a legitimate aim. In this case, the tribunal found in favour of the employee.
In short, the business concerns cited did not outweigh the discriminatory impact upon women with children.
What are the main considerations for employers?
Employers should always look at a way to accommodate the request and try to identify a pattern of work that could suit both parties.
Employers should look at creative work arounds to show that they are fully engaged in the process and not simply hiding behind outdated practices and attitudes. Carefully consider whether established policies or practises could put groups of people at a disadvantage, whether that be for example, those with childcare responsibilities or those with disabilities etc.
Offering a trial period to any new working pattern is a great way to establish any impact it may have on the business and demonstrates a willingness to accommodate the request. It also gives the employer some flexibility to renegotiate certain terms if the pattern is not working out or having a detriment on the business.
Ensure clear records are kept of the process and try to put any request on a formal footing to ensure all conversations and requests are clearly documented. The reasoning and consideration for any decision should be captured for reference purposes.
If you need any assistance with flexible working requests or implementing a policy or procedure please do not hesitate to get in touch with any member of the team.