Member Article

Flexible working is not a new concept in the UK, and it exists in a number of forms, both formal and informal.

However, in the UK as with the rest of Europe, the sudden emergence of the coronavirus pandemic flipped the way many people worked across the EU as governments put in place social distancing and isolation measures.

The UK’s homeworking statistics over the past year have fluctuated slightly with changes to government policy, peaking at 38% in June 2020 according to the Office for National Statistics. This is notably higher than the average prior to the pandemic. The situation going forward is as yet unclear, but most commentators expect a higher proportion of homeworking (whether part-time or full-time) to be an enduring effect of the pandemic on the British workforce.

Many of these home-working arrangements are likely to be agreed informally with individuals’ line managers or permitted by a company’s discretionary policy on flexible working. Where that does not happen, or where an employee wants the security of a formal home working pattern, they may make a statutory flexible working request.

Flexible working requests

In the UK, all employees with 26 weeks’ continuous employment have the legal right under the Employment Rights Act 1996 (‘ERA 1996’) to request flexible working from their employer once in each 12-month period. Given that the ERA 1996 includes several formalities which must be met in order for the request to fall within this regime, most employers have a standard format for employees to use.

An employer in receipt of a statutory flexible working request is obliged to deal with that request in a reasonable manner and notify the employee of their decision within three months. In rejecting a request, the employer must rely on one or more of the eight grounds prescribed by the ERA 1996: the burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. Whilst the legislation does not require employers to offer the right of appeal against the refusal of their request, Acas (a public body which conciliates employment disputes and sets best industrial relations practice in the UK) suggests an appeal is offered. Acas also recommends offering a trial period rather than rejecting a request where possible, which many employers do.

An employee unhappy with the handling of their flexible working request may bring a claim in an Employment Tribunal on a number of bases, including that the employer failed to deal with it in a reasonable manner or rejected it for a reason other than the statutory grounds. Such a claim must be brought within three months of the employer’s failure, subject to extension by mandatory early conciliation through Acas.

The Employment Tribunal’s power to overturn an employer’s decision to refuse a flexible working request is narrow, but if it does, it must make a declaration that the claim is well-founded and may also make an order to the employer to reconsider the request and/ or an award of compensation from the employer to the employee of up to eight weeks’ pay.

Discrimination

The anti-discrimination regime in the Equality Act 2010 (‘EqA 2010’) also bears relevance to flexible working or teleworking. A common application is where an employee meets the EqA 2010 definition of disability. Where that disabled employee is put at a substantial disadvantage because of an employer’s provision, criterion or practice (‘PCP’) applied generally, a physical aid, the onus is on the employer to make reasonable adjustments to alleviate that disadvantage.

An employee with mobility or pain issues connected with a disability may find it difficult or uncomfortable to travel into the workplace five days a week. Assuming the employer is aware of the disability, it is very likely an Employment Tribunal would expect the employer to allow the employee to work from home for some or all of the working week if it is possible. If it is not possible, the employer is still entitled to refuse – a refusal of a disabled employee’s flexible working request was held by the Employment Appeal Tribunal not to be a failure to make reasonable adjustments given the employee’s job necessarily involved having face-to-face interviews with the public and had to be done at the office.

The other discrimination issue which can arise with flexible working is indirect sex discrimination. Courts and tribunals in England and Wales generally accept that women are more likely than men to have primary care responsibilities for children or others. Therefore, a blanket policy against allowing flexible and teleworking is a PCP which would put female employees at a substantial disadvantage. In order to avoid liability for indirect discrimination, an employer would either have to permit flexible or teleworking to a suitable degree or have an objective justification for the refusal – i.e. that the nature of the job does not allow it.

Aside from the legalities of flexible and teleworking, it is clear that in the UK – at least in some sectors, such as professional services – it is an unavoidable part of people management. Especially after the pandemic, flexibility around work is expected by many staff and an accommodating employer will see the benefits to staff retention and talent attraction.

This article first appeared in the “European Employment Law Update 2021: Flexibility and teleworking” report, contributed to by all of the law firms included within the European Employment Group of the World Services Group.

Read the full report here.