Flexible working requests: 5 tips for employers

In a recent case, an estate agent has demonstrated the consequences of refusing a flexible working request after being ordered to pay almost £185,000 for indirect sex discrimination to a former employee.

In Thompson v Scancrown Ltd trading as Manors, the claimant was employed as a sales manager by the Respondent, an independent estate agent. Following a period of maternity leave, the claimant made an unsuccessful application to work shorter hours to collect her daughter from nursery. When this application was refused, the claimant resigned and filed several claims, including indirect sex discrimination.

The Tribunal found that the Respondent’s failure to consider this flexible working request put the claimant at a disadvantage and upheld her claim for indirect sex discrimination, awarding £184,961.32 for loss of earnings, loss of pension contributions, injury to feelings, and interest.

This recent judgment has reaffirmed the need for employers to carefully consider all flexible working requests and ensure that rejecting the proposed change is an appropriate response given the significant potential liabilities if found to be discriminating against a claimant. For those employees protected under the Equality Act 2010 in these circumstances, there is no limit on the amount of compensation that can be awarded for such claims. Albeit each case is considered according to its own facts, this protection includes women requesting flexible working to ensure they can access childcare.

Employers are finding a sharp rise in requests from a variety of different employees relating to where, how and when they work. A recent report from McKinsey found that 52% of all workers would prefer a more flexible working model post-pandemic. However, working from home per se is unlikely to become a strict legal right for everyone after the indication by the Flexible Working Taskforce, the body advising the Government on flexible working, that they would not support such a move. Nonetheless, employees who have enjoyed the benefits of hybrid or remote ways of working are still able to turn to statutory flexible working requests if they are required to return to work this autumn and many are doing so with the added layer of protection from discrimination laws for those women seeking flexibility for childcare reasons.

5 Tips for Employers

What should employers bear in mind?

1. Statutory flexible working requests may only be refused on eight grounds, including costs, ability to meet customer demand, and inability to reorganise work. If there is a valid business reason for refusing a request, an employer should consider suggesting an alternative working arrangement in discussion with the employee and seek agreement where possible. Due to the rise of remote working since the pandemic, many employers will now find it harder to refuse requests on the basis that certain work cannot be done from home, remotely, or during flexible hours.
2. Always remember that this refusal of the statutory request is not the end of the story as the refusal may also have to be justified in the Tribunal if it is a policy or practice the employer follows which disproportionately affects a person with a protected characteristic, for example, mothers needing flexibility for childcare, and it cannot be fully justified. In reality, Tribunals will want to see evidence of proper training for all decision makers and a fair system in place for assessing the impact of the proposed change on the business and other workers, based on proven facts in order to allow such justification defence. Employers should therefore, where possible, consider a trial period for a reasonable length of time in order to adequately assess the impact of modified working arrangements on their workplace.
3. Employers should remain consistent in their treatment of these requests and keep clear records of their reasoning when making decisions.
4. Employers should consult their existing policies and practices for flexible working, which ideally will incorporate the statutory requirements and principles outlined above and from the Acas Code of Practice.
5. Employers are required to deal with requests in a reasonable manner, which includes processing requests with no undue delay and within a three-month time limit, and offering a right to appeal wherever possible.