Employers: prepare for the new flexible rights

The right to request flexible working is, quite rightly, currently a focus for HR professionals and employers. The Employment Relations (Flexible Working) Bill, currently making its way through the House of Lords and likely to come into effect in 2024, will make a number of changes to the process of making a flexible working request. In addition, secondary legislation will make the right to request a day one right. It is therefore essential that employers appreciate all of the potential implications of refusing a request.

The right to request is currently set out in the Employment Rights Act 1996. If an employee is unhappy with the outcome of their request, complaints under the statutory regime can be made to an employment tribunal relating to procedural errors made by the employer, including:

• rejecting the application for a reason other than one of eight reasons;
• the employer failing to deal with the application within the required timescale;
• the employer treating the application as withdrawn when it was not entitled to do so.

If an employee is successful, the tribunal may order the employer to reconsider the application, and may make an award of compensation to the employee up to a maximum of eight weeks' pay – currently a maximum of £5,144. 

Combining claims

The statutory regime has been accused of being "toothless" due to the limited remedies available to employees making claims. However, in many cases employees making a claim related to a rejected flexible working application will also make other related claims. 

While sex discrimination claims are the ones most commonly associated with the rejection of flexible working requests, it is not unusual to see claimants arguing that the refusal was discriminatory because it places them at a disadvantage because of their disability or religion. An unfair dismissal claim may also be a possibility. There is no qualifying period of service required for dismissals where the reason or principal reason for dismissal is either the employee making, or proposing to make, a flexible working application or where the employee has brought tribunal proceedings against the employer or has alleged the existence of circumstances which would constitute grounds for bringing such proceedings. There is also protection from detriment on similar grounds. 

It is possible for a claim brought under the statutory right to request regime to fail, but an accompanying discrimination claim to succeed (and in the majority of cases both claims are brought together). A common scenario is that of where a female employee makes a request to work flexibly for reasons relating to childcare. Where an employer applies a provision, criterion or practice (“PCP”) – effectively a rule of some sort – that requires working hours that female employees cannot comply with, and female employees in general and the female making the claim are put at a disadvantage as a consequence, then the employee may be able to make a successful indirect discrimination claim if the employer cannot objectively justify the requirement. And as we know, remedies for discrimination claims include compensation for injury to feelings as well as actual financial loss flowing from the discriminatory act. 

Was the PCP applied?

The recent case of Glover v Lacoste UK Ltd [2023] EAT 4 shows that, even when an employee is not required to work the schedule that causes the disadvantage, she may still be successful in making a claim of this sort. The claimant worked full-time hours as an assistant store manager, but those hours were fully flexible (for the employer), meaning she could be required to work varying days on a shift rota. On return from maternity leave she requested three fixed days a week. Her application was rejected. At the end of her maternity leave she was furloughed, so was not required to return to the previous variable shift rota. She appealed the decision; the request for three fixed days was rejected but she was offered four days a week, continuing with the shift flexibility and there was to be a six-month trial. It was only when the claimant's solicitor wrote to her employer threatening constructive dismissal that the employer changed its position, agreeing to accept her original request in full. 

An employment tribunal found that the PCP of requiring flexible (variable shift) working had not been applied to the claimant because furlough meant she had not returned to work under it. However, the Employment Appeal Tribunal ("EAT") disagreed, finding the determination of the internal appeal was the point at which the PCP had been applied. So, if the employer had changed its position at the internal appeal rather than in response to a solicitor's letter, the claimant's tribunal claim would have failed. 

The case is now to be returned to a differently constituted employment tribunal to be heard again. This will include the tribunal having to consider what the disadvantage caused to the claimant by the rejection of her request was, but as the EAT said: "it is hard to see on what basis it could be held that there was no disadvantage and detriment to the claimant when the appeal was determined against her".

Expect more requests

The process for making a request for flexible working is being simplified via the Employment Relations (Flexible Working) Bill. Employees will no longer have to set out how the employer might deal with the effects of their request. They can also make two flexible working requests in a 12-month period rather than one. In addition, they must be consulted if the employer is considering rejecting the claim. Finally, the employer will have to deal with this process within two months rather than three (although this can be extended by agreement). 

When the legislation to make the right a day one right takes effect, that, combined with a raised expectation of flexible working, is likely to contribute to an increase in requests being made. If more requests are made by women relying on the childcare disparity and they are granted, that gives further scope for men seeking flexible working for childcare reasons to make direct sex discrimination claims. These are based on the argument that where female colleagues have had their requests granted, if male employees’ requests are not also granted, that is because they are male and not female. 

It is important to bear in mind that under the flexible working regime, all an employer has to do is show that the refusal fitted into one of the eight reasons for refusal. However, if the employee also claims that the refusal was indirectly discriminatory, the employer has a much higher test to satisfy in order to show that the refusal was objectively justified. And if the refusal was directly discriminatory (e.g. if a man could show that a woman would have had her request granted), the employer will not get a chance to justify the refusal at all.

Shifting onus

In some cases it will of course be wholly appropriate to reject a flexible working request, and doing so should not give rise to successful claims of any sort. However, given the potential implications of rejecting requests, employers will need to ensure they are dealt with in a reasonable and non-discriminatory way. According to the UK Government, the reforms being made to flexible working requests are to put the onus back on employers to think about building flexibility into roles from the outset. That is something which employers should be considering now, in advance of the new rights taking effect.