Employment Rights Act raises bar for rejecting flexible working requests

Reasonable refusal

Under the ERA, making a flexible working request will become a day one right for all workers, with employers required to accommodate requests where possible.

• Read more: Understanding what the Employment Rights Act means for you

In a change from the current position, rejecting requests for flexible working arrangements will only be permitted where it is reasonable for the employer to do so, with the reasons now required to be set out in writing.

The eight business critical reasons which were set out in the 1996 Employment Rights Act will remain in place. These are:

• burden of additional costs it incurs;
• being unable to reorganise work among other staff;
• being unable to recruit additional staff;
• negative impact on performance;
• negative impact on quality of work;
• negative effect on being able to meet customer demands;
• not enough work available for period in question; and
• structural changes to the employer.

However, unlike the current regime, the ERA will now enable a tribunal to test if refusal was reasonable and rule accordingly. The process will therefore put the onus on businesses to accommodate workers’ requests or prove why they cannot, which reopens the debate around the nature of the modern work environment and how to balance conditions – such as remote working or hybrid working agreements – with business needs.

Care should, as now, be taken to avoid discrimination. Indirect discrimination might be a factor where, for example, late-night working is required and women with childcare commitments are disproportionately impacted. Associative indirect discrimination could arise where, in this example, a man with childcare commitments ‘piggy-backs’ on the women’s disadvantage, even though others who share his protected characteristic – being male – are not disadvantaged in the same way. Both types of indirect discrimination can be justified, but need to be thought through.

What you need to do

Analysing recent decisions about flexible working requests, including refusals, will enable employers to understand those decisions and codify why they were turned down. The nature of the ERA means requests may be resurrected and would require written reasoning for refusal next time around.

Having clear, practical resources for managers and workplace leaders who make decisions about flexible working will help them take a consistent approach. This is especially important when explaining the justification for refusing a request. Resources should also guide managers on how to avoid discrimination risks - whether that is traditional indirect discrimination, or associative indirect discrimination - so that any issues are pre‑empted once the new legislation is in force.

It is also potentially an opportunity to consider the nature of extended flexible working on the facilities and physical workplace itself, particularly regarding usage of space and issues such as lease renewals. Seeking expert advice and drawing up a strategic approach to what this means for property management may mitigate long term issues.

The so-called ‘right to disconnect’ – such as not being obliged to answer work emails or calls outside normal working hours – is not included in the current changes. The government is not proceeding with this aspect of its proposals, which had originally been included in its Next Steps to Make Work Pay strategy document. However, the experience of group companies in countries such as Ireland or Belgium where there is already a legal right to disconnect should be considered.