Flexible work demands: 5 tips for employers
In a recent case, a real estate agent demonstrated the consequences of refusing a request for flexible work after being ordered to pay almost £ 185,000 for indirect sex discrimination to a former employee.
In Thompson v Scancrown Ltd doing business as Manors, the plaintiff was employed as a sales manager by the respondent, an independent real estate agent. After a period of maternity leave, the claimant made an unsuccessful request to work fewer hours in order to pick up her daughter from the nursery. When this claim was rejected, the claimant resigned and filed several claims, including indirect sex discrimination.
The Tribunal found that the Respondent’s failure to take this flexible work demand into account disadvantaged the Claimant and upheld her claim of indirect sex discrimination, awarding her £ 184,961.32 for loss. of income, loss of pension contributions, damage to feelings and interests.
This recent judgment reaffirmed the need for employers to carefully consider all requests for flexible work and ensure that rejection of the proposed change is an appropriate response given the significant potential responsibilities if it turns out to be. discriminates against an applicant. For employees protected by the Equality Act 2010 in these circumstances, there is no limit to the amount of compensation that may be awarded for such claims. Although each case is examined on its own facts, this protection includes women who request flexible work to ensure they can access child care.
Employers are seeing a surge in requests from a variety of different employees about where, how and when they work. A recent McKinsey report found that 52% of all workers would prefer a more flexible work model after the pandemic. However, working from home per se is unlikely to become a strict legal right for everyone after the Flexible Work Task Force, the body advising the government on flexible working, is indicated that they will not. would not support such a decision. Nonetheless, employees who have enjoyed the benefits of hybrid or remote working methods can still turn to statutory flexible work requests if they are required to return to work this fall and many do so with the added layer of protection against them. discrimination laws for those women who seek flexibility on the grounds of child custody.
5 tips for employers
What should employers be thinking about?
- Statutory requests for flexible working can only be refused on eight grounds, including cost, ability to meet customer demand, and inability to reorganize work. If there is a valid business reason for denying a request, an employer should consider suggesting an alternate work arrangement by speaking with the employee and seeking an agreement where possible. Due to the increase in remote working since the pandemic, many employers will now have a harder time refusing applications on the grounds that some work cannot be done at home, remotely or during flexible hours.
- Always remember that this denial of the legal claim is not the end of the story as denial may also need to be justified in court if it is a policy or practice followed by the employer that disproportionately affects a person with a protected characteristic, for example, mothers need flexibility in childcare, and this cannot be fully justified. In reality, the Courts will want to see evidence of appropriate training for all decision makers and of a fair system in place to assess the impact of the proposed change on the company and other workers, based on proven facts to to allow such a defense of justification. Employers should therefore, whenever possible, consider a trial period of reasonable length in order to adequately assess the impact of changes in working arrangements on their workplace.
- Employers must remain consistent in their handling of these requests and keep a clear record of their reasoning when making decisions.
- Employers should consult their existing flexible working policies and practices, which ideally will incorporate the statutory requirements and principles described above and the Acas Code of Practice.
- Employers are required to handle requests in a reasonable manner, which includes processing requests without undue delay and within three months, and providing a right of recourse to the extent possible.
“Here, the claimant regretted that flexible working did not seem to be considered correctly – as in our conclusion it was not – and felt that it was an injustice because of her gender, which it was. “