Changes to work patterns due to restrictions seem unlikely to be reversed

Consultation seeks to enable a highly skilled and productive labour market by removing invisible barriers to employment, says Elizabeth Bremner

An increase in remote working due to the Covid-19 pandemic has brought flexible working practices to the forefront of discussion.

The subject was recently considered in the Employment Tribunal case of Mrs A Thompson v Scancrown Ltd t/a Manors. The employee, Alice Thompson, submitted a flexible working request upon her return from maternity leave to allow her to finish at 5pm rather than 6pm. The reason for the request was to allow her to collect her child from nursery. This request was denied, with her employer citing several reasons such as the burden of additional costs, detrimental effect on meeting customer demand and its inability to reorganise work among existing staff.

Following this, Mrs Thompson resigned and brought a claim in the Employment Tribunal on various grounds, including indirect sex discrimination. It was held that the employer had failed to show that refusal of the proposed reduction in hours was proportionate to the real needs of the business. As such, this amounted to indirect sex discrimination and Mrs Thompson was awarded compensation of £184,961.32.

This case displays the importance of giving adequate consideration to flexible working requests and only refusing a request where this can be justified. A blanket rule on fixed working hours is likely to leave employers open to sex discrimination cases which, as shown by this judgment, can be high value.

In September, the Department for Business, Energy and Industrial Strategy published a consultation, Making Flexible Working the Default,. As part of the government’s strategy to tackle challenges the economy will face post-pandemic, it seeks to remove invisible barriers to employment. While remote working is the feature of flexible working which has been given the most attention in recent times, there are many other ways in which employers can provide greater flexibility to employees. At present, employees have a right to ask their employer to change the conditions of their employment to allow flexible working provided they have worked for their employer for 26 weeks. The consultation proposes making the default position that employees can make a flexible working request from day one of their employment.

There are eight business reasons for which a flexible working request can be validly refused. While the consultation states that the government is content that the current list of reasons do not present a disproportionate barrier to flexible working, views are sought on whether all eight grounds remain valid.

The consultation seeks views on whether employers should be required to show that they have considered alternative working arrangements when denying a request for flexible working. It is hoped that this would encourage a culture in which employers fully consider requests for flexible working and the alternatives available.

Currently, an employee can only make one statutory flexible working request every 12 months and an employer has three months to consider whether that request can be accommodated. The consultation seeks views on whether multiple requests should be permitted and whether the time-period within which employers must respond should be shortened. The consultation is open for responses until December 1.

The changes to working patterns necessarily introduced as a result of government restrictions around the world seem unlikely to revert fully to pre-pandemic ‘normality’. The number of employees working remotely and/or flexibly in the UK has grown exponentially during the past 18 months and it is arguable that the business case for that model is now proven. Legislation is being drafted around Europe allowing employees the right to work remotely and with a growing emphasis on work-life balance, it’s likely the UK will follow soon.