Flexible working day-one rights will bring new challenges for UK employers

Out-Law News | 30 Sep 2021 | 10:34 am |

Anne Sammon tells HRNews about the government’s plans for making flexible working the default

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  • Transcript

    The UK government has launched a consultation aimed at making flexible working the default approach for employers and individuals in the future. The Department for Business, Energy and Industrial Strategy (BEIS) launched the consultation last week on amending the existing flexible working legislation. Although the consultation does not propose a ‘right’ to flexible working, it said it wanted to make flexible working the default with a right for an employee to request flexible working patterns from day one of a new job.

    The consultation sets out five proposals, the first being the day one right to flexible working. It considers whether the eight business reasons outlined in the Employment Rights Act for refusing a request for flexible working still remain valid and proposes requiring employers to suggest alternatives. BEIS is also consulting on changing the administrative process required for flexible working, by allowing more than one request every 12 months and reviewing the three-month response period currently mandated; and exploring ways to encourage time-limited requests, which are allowed in the current framework but under-utilised.

    The government’s plans are not the radical reforms the trade unions have been calling for. Personnel Today quotes the TUC’s General Secretary, Frances O’Grady, who said the government’s plans were merely ‘tinkering around the edges’ as employers would still have ‘free rein’ to turn down employee’s requests. She said, ‘the right to ask nicely is no right at all’. She also wants higher penalties for employers who break the law. The existing penalty for failing to deal properly with a request is currently capped at £4,352 and that will remain in place. The bigger risk for employers who refuse requests will be claims of indirect discrimination where compensation is uncapped. 

    Anne Sammon has written about this for Outlaw and she agrees it does feel like tinkering around the edges rather than a fundamental change. She says: ‘At a time where our working practices have been transformed, this plan keeps pace with those changes. In practice, many of organisations already provide for this in their policies, meaning that for some there will be very limited impact, if any at all.’ However, she sees problems ahead if there was an increase the number of flexible working requests that can be made each year, and problems if employers are required to suggest alternative arrangements. So let’s find out more on this. Anne Sammon joined me by video-link to discuss the planned to changes. I started by asking Anne about the current limit on requests: 

    Anne Sammon: “So, the current limit says that you can only put in one formal statutory request for flexible working once in any 12 month period. So you put in your request and you have to wait, effectively, a year to make a second request and I think one of the really important things to bear in mind is the amount of HR resource that dealing with some of these requests requires and that was always part of the rationale of having a limit on how many requests the employee could put in. It was to kind of help HR to manage that process and manage their workload.”

    Joe Glavina: “Under these proposals employers may be required to suggest alternative arrangements. What’s your concern with that one?”

    Anne Sammon: “So again, this is around how this actually works in practice. I think it's worth saying at the outset that lots of the clients that we work with will actually do this as a matter of course. So, an employee puts in a request, asks to work three days a week, that might not be viable, but the employer might say but we think you could work four days a week, you know, is that something you're interested in exploring? So it's not that in theory that's not a good idea. I think the concern that I have is how this works in practice, and what the obligation is on the employer. So, if there's just a general obligation for the employer to suggest alternatives, what does that actually entail for the employer? Is one alternative enough? Do you have to suggest multiple alternatives? What if the employee has made it very clear at the outset that they're only interested in working three days a week, for example, and don't want you to consider anything else? The concern is the wider the guidance and the kind of more discretion that an employer has as to how much consideration they give to alternatives, the greater the risk of discontent from the employee and a feeling that maybe the employer hasn't complied with the legislation, and then the greater the risk of litigation.”

    Joe Glavina: “The biggest risk with turning down flexible working requests has always been indirect sex discrimination. Will that change?”

    Anne Sammon: “I think the risk in terms of indirect sex discrimination is going to remain the same because, essentially, the employer is going to have to think about this again on two fronts. So, are you dealing with the flexible working legislation and have you thought about the consequences from an indirect sex discrimination angle? I think one of the one of the really positive aspects of the sex discrimination angle has always been a bit of a concern that, actually, as more fathers were involved in child care that that obligation might fall away because, obviously, in order to have indirect sex discrimination you have to show that that there is something that places women at a disadvantage and historically we've always been able to say, well, that's the obligation to look after a child, the childcare burden, and there was a line of cases that had suggested that maybe as society moved on that that might not continue to be as much of a burden on women and therefore that whole ability to say that a refusal of a flexible working request was indirect sex discrimination might fall away. Now, quite usefully, we've recently had a judicial decision that says, well, actually, you have to take judicial notice of the fact that women do have that childcare burden. So I that's the bigger piece in this, that we know that the courts will start from the assumption that, actually, if we're looking at childcare issues women do bear that the greater burden of responsibility.”

    Joe Glavina: “Tulip Siddiq’s private members’ bill is due to have a second reading in November. It covers ‘day one’ flexible working rights other than in exceptional circumstances, a requirement to offer flexible working in employment contracts, and advertising flexibility in job vacancies. Two points on that, Anne. Do you think we could see any of those impacting on this consultation and might employers choose to go down this route on a voluntary basis?

    Anne Sammon: “I think given that none of those feature in the consultation at the moment, it would be surprising if the government then implemented proposals around them. In terms of whether employers might go down any of those routes, I think we've already started to see some employers wanting to genuinely embrace flexible working and therefore including information about flexible working in their job application process or in their adverts so that's one route that we've already seen employers go down. I suspect that many will also, as a result of the pandemic, have embraced flexible working in a way that they didn't before, but I think the really key thing to bear in mind here is that when we're talking about post-pandemic flexibility, we tend to be talking about changing the location that people work from and flexible working encompasses a whole range of different options and that includes changing location, but it also includes reducing working time. So, one of the one of the big types of requests that we quite often see in terms of flexible working requests is a request to reduce down from full time to part time and that's where, I think, there is potentially work for employers to do in terms of thinking about which of their roles genuinely might be suitable for part time working and which absolutely are not.”

    The government’s consultation paper was published last week and is called ‘Making Flexible Working the Default.’ The closing date is 1 December. We have put a link to that in the transcript of this programme.

    LINKS
    - Link to consultation paper