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Blog • 09.02.22

Employment tribunal cases on flexible working are on the rise

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It has recently been reported that the number of employment tribunal decisions in the year 2020/2021 that involved issues relating to flexible working requests rose last year by 52%. We are taking a look at why this might be, and some top tips from our HR experts on how to avoid becoming part of that statistic.

Why the increase?

We can’t be sure, but we expect that there are a number of reasons behind this rise:

Covid has changed expectations

But the pandemic has also changed the way many of us think about work.  Many businesses have found that their staff can work from home successfully, perhaps contrary to what they expected.  Many employees with children or other dependants have been able to save on commuting time and costs, and develop a better balance between work and home life, without compromising the quality of their work.

And as we emerge from the latest period of guidance to work from home if possible, many people are keen to try to keep some of the benefits of working from home at least for some of their working week, or to work slightly different hours.  The number of requests for flexible working is therefore on the increase, and many companies are now standardising a hybrid working model for staff that don’t need to be in the workplace for all of their working hours.

Fear of coming back to the workplace after Covid

There may well have been tensions between some employers and their employees over the timing and extent of returns to the workplace after a period of lockdown, or guidance to work from home if possible.  In those situations, flexible working requests may well have ended up becoming difficult conversations to reach agreement on.

The ‘great resignation’ trend is fuelling a demand for more flexible choices

With record numbers of job vacancies, competition for skilled staff is becoming fiercer.  One element of a new job that many are now seeking to insist on is the ability to work more flexibly, either through hybrid working or more flexible hours, such as flexitime or reduced hours. Existing employees may be trying to follow suit.

Government policy looks likely to make it a default right

A government consultation on proposals to encourage flexible working and make it the default position for staff unless the employer has good reason not to, closed on 1st December 2021.  It feels very much that the direction of travel is towards this becoming a right for employees to request that you consider different flexible working options for them, and to come up with alternative proposals if you can’t accommodate their original request.  This may well have given employees more confidence to challenge their employers over flexible working.

How can you deal well with flexible working requests?

We think there are 3 main points to think about in relation to your approach to handling flexible working.

Don’t just say ‘no’

If you don’t engage with flexible working requests or try to be accommodating or come up with other possible flexible solutions, you can end up facing serious claims for damages.  The case of Alice Thompson last year is a good example.  Her employer, Manors Estate Agents, was ordered to pay her damages of £185,000 for indirect sex discrimination, when they failed to consider her request to work flexible hours in order to pick up her daughter from nursery.  Instead of engaging with the process and coming up with alternative ways for Ms Thompson to work such as starting earlier in order to finish earlier, they shut the process down as quickly as possible, and ended up paying a high price for it.

If you can’t accommodate the first request a member of staff makes to you for a flexible working pattern, consider what else might work for you which could give them some or all of the flexibility they are seeking, and see if you can negotiate a way forward that you are both happy with.

When we are advising small business owners on how to handle these requests we’re often told that they ‘don’t want to set a precedent’. We do understand the fear of agreeing it for one person and the worry that it might open the floodgates for other requests, but that isn’t a justifiable reason to say no. You need to consider each request on its own merits. If you can accommodate the first one, then that doesn’t mean you have to say yes to all the others – in fact accepting some requests will demonstrate that you do accommodate it where you can operationally.

Take the time to get the process right

The request can take several different forms, and it might be something you’re considering offering company wide, or you are dealing with for individual employees.  It may not work for every job role, but whatever your situation, it’s well worth spending the time to get the process right.

Have a look at our blog Flexible working: how to manage a request to change working arrangements for detail on the different types of request that could come your way and the best way to handle the process.  Having a robust Flexible Working Policy setting out the process you will follow so that everyone is clear, can also help.

Make it a positive

And if you are a company that can accommodate flexible working, now more than ever it’s worth shouting about it as a way to attract better quality staff and to keep those you already have.

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