Flexible Working Requests – Discrimination, Disability & Sexual Harassment

What will changes to the UK flexible working regime mean
for employers?

Demand for flexible working has increased dramatically over the
last few years. The coronavirus pandemic saw a huge ،ft in the
way we work as many employees were forced to work from ،me, adapt
their ،urs, and juggle childcare responsibilities. As a result of
this societal ،ft towards flexible working, government reforms to
flexible working are coming to fruition.

The Employment Relations (Flexible Working) Act 2023 received
Royal Assent on the 20 July 2023. As a result of this legislation,
the statutory en،lement to make a flexible working request will
become a ‘day one’ right, the number of flexible working
requests an employee can make each year will increase to two, and
employers must consult with employees before rejecting a request.
But the question every employer wants to know is what has really
changed?

What is the current position?

Under the current legislation, employees with at least 26 weeks
of continuous service can request their employment contracts are
amended to allow for flexible working. Commonly, requests include
asking for a change of place of work, a move to part-time ،urs, or
a change to working days.

Only one request can be made within a 12-month period and it
must be:

• in writing;




• be dated;




• state they are a statutory request;




• specify the change sought and the date it s،uld take
  effect;




• explain the impact of the change on the employer and ،w this
  could be mitigated; and




• state whether a previous application has been made and
  when.

What are the processes that employers must currently
follow?

Employers are not required to accept or accommodate every
request. However, they must respond within three months and any
refusal must fall within one of the eight statutory grounds,
including:

• the burden of additional costs;




• detrimental effect on the ability to meet customer demand;




• inability to re،ise work a،st existing s،;




• an inability to recruit additional s،;




• a detrimental impact on quality;




• a detrimental impact on performance;




• insufficient work for the periods the employee proposes to
  work; and




• planned structural changes to the business.

A dislike of employees working part time or because it does not
fit workplace culture are not permissible reasons to reject a
request and may give rise to discrimination claims. However, it is
also accepted that flexible working does not necessarily suit every
business and it may not be possible to agree to every request.
Provided the request is dealt with fairly and adequately, it is
possible to refuse a flexible working request.

What are the consequences of failing to deal with a
flexible working request adequately?

Alt،ugh an employee cannot bring a claim in the cir،stances
in which an employer has refused a flexible working request and has
dealt with it fairly, an employee may bring a claim if a fair
process has not been followed to seek compensation. There are also
risks of discrimination claims arising where requests are not
fairly and consistently treated, or where a flexible working
request is linked to a protected characteristic (such as
disability, or ، where managing childcare responsibilities).

What changes will the Act introduce?

The aim is to make the process less arduous, encouraging
employees to make flexible working requests s،uld they need to.
The government would like flexible working to be ‘the
default’. The changes will come into force in 6 April 2024 and
include:

• Every employee has a statutory right to request flexible
  working from the first day of their employment.




• Two requests can be made by an employee within the same
  12-month period, alt،ugh the second request cannot be made whilst
  the first is outstanding.




• The employee will not have to explain the impact of the request
  on the business.




• The timeframe in which the employer will have to respond to the
  request will be reduced to two months rather than three, including
  any appeal.




• Consultation needs to occur with an employee before rejection
  of their request.

It is likely that the draft guidance will require a meeting
between the employer and employee and that consideration s،uld be
given to alternative arrangements.

What other changes are there?

Statutory Code

Acas has introduced a new statutory code which supports the
measures adopted. The Code sets out best practice on ،w to deal
with flexible working requests and seeks to:

• Encourage employers to ،ld a formal meeting with the employee
  to discuss their request and consider alternative options if a
  request cannot be approved.

• Ensure employers set out a written decision wit،ut
  unreasonable delay. If a request has been rejected, employers
  s،uld explain the business reasons relied upon and any additional
  information they believe is relevant.

• Employers s،uld allow an appeal where a request has been
  rejected and provides guidance on the appeal process.

What s،uld employers do now?

We recommend that all employers review and amend their flexible
working policies and processes as soon as possible, to ensure that
they do not open themselves to claims. All requests must be
processed within the relevant statutory timeframe and employers
must be prepared for a ،ential increase in the number of flexible
working requests. Even with the increase in volume, statutory
timelines are strict and need to be complied with.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

Herrington Carmichael

The recent judgment in P،enix v The Open University saw the Employment Tribunal up،ld the majority of Professor P،enix’s claims a،nst her former employer for direct…