The issue of flexible working is attracting attention in public discussion. It is also giving rise to more and more legal claims. Research by a law firm, G. Q. Littler, reported in Personnel Today on 17 January 2022, indicated that the number of claims arising from flexible working requests had risen by some 52% in the year 2019/20 to 2020/21.
There is a right for employees to make a flexible working request and not to be subjected to a detriment for having made such an application. A formal process needs to be followed. If the request is refused, only a prescribed reason to justify it must be given such as “detrimental impact on performance” or “inability to meet customer demand”.
There is no direct right to flexible working. However, there is a right to have proper consideration of an application. A claim in tribunal will often be paired with a claim for discrimination such as sex discrimination or disability. Things like resistance to returning to the office following the easing of Covid-19 restrictions have likely contributed to the increase. Those with caring responsibilities or suffering from health conditions are more likely to have made claims because of circumstances arising from the pandemic.
It is also likely that there is a change in the level of expectation on the part of employees for their employers to be flexible. The old arguments for resisting flexible working seem less convincing following widespread home working during the pandemic.
Four-day work week?
On a related matter, a sixmonth trial looking into the 4 day working week with no loss of pay is set to start in June 2022. This will be running collaboration between Cambridge and Oxford Universities, Boston College, the UK 4 day Working Week Campaign and the Think Tank Autonomy. They are planning to involve some 20 to 30 companies. Certain large businesses such as Morrisons’ at their head office have already committed to shortening the working week while others are trialling it: the Guardian 16 January 2022.
Flexible working: default position?
In October 2018 the government stated an intention to create a duty for all employers to assess where that job can be done flexibly. In the Queen’s Speech of 19 December 2019 anticipated flexible working being made the default position. During 2021 the government stated that it would consult on making flexible working the default position. Views were invited on whether the employer should be required to suggest alternatives to the arrangement proposed by the employee instead of an outright rejection. The consultation closed on 1 December 2021 and new legislation is likely.
To speak to us about your employment issues, whether to do with strategic business decisions or a particular issue involving an employee, get in touch with Jonathan Mansfield or another member of our Employment team on 020 7377 2829.