Flexible working: what difference will the new legislation make?

Flexible working legislation is changing. New legislation has just got Royal Assent, although secondary legislation will be required when it comes to a day one right to request flexible working. This is promised by next year. 

What is likely to happen once the new legislation comes into force and what is the situation now, post-Covid? We spoke to employment lawyers to get their views.

Have you seen an increase in flexible working requests since Covid?

The lawyers we spoke to said they have seen an increase in people putting in flexible working requests since Covid, but not necessarily a big increase in legal cases when they don’t get the pattern they requested. 

Maria Hoeritzauer, a Partner at Crossland Employment Solicitors, says there has not been a significant increase in people taking cases to employment tribunal.  She says: “In our experience, either the situation can be resolved amicably internally, for example, by using an alternative working arrangement, or the parties decide to part ways.”

Charlotte Farrell and Tabytha Cunningham at Paris Smith LLP say Covid showed that people can work effectively outside the normal 9-5 Monday to Friday pattern. They add that people seem more determined to enforce their rights post Covid. They state: “We are seeing an increase in employees who are prepared to challenge their employers if they reject a request, whereas historically employees may have been more inclined to accept a decision and move on.” That doesn’t necessarily add up to legal action, but they say more internal challenges and negotiations are taking place, with  employers finding it harder to justify saying no to sensible flexible working requests.

Nikki Sharpe, employment expert at Best Solicitors, adds that, while employers can turn down a request and there is a compensation cap of two months’ impact under the current flexible working legislation, they need to consider the broader costs of defending a case and potential recruitment costs if the employee leaves. 

Do employees tend to take action based on just flexible working legislation, which has a broad range of reasons which employers can use to reject a request?

Hoeritzauer says that typically any legal action is combined with other legislation, such as sex or disability discrimination.  But Sharpe says she has pursued claims on the statutory flexibility point alone, but adds that often claims are combined.   She says: “A recent client had submitted a flexible working request due to childcare issues. Her employer refused this which resulted in her having no option but to resign from her role.  The claim had two strands – her flexible working statutory rights, and constructive dismissal which progressed to an employment hearing. The outcome was successful with my client receiving the equivalent of five months’ income.” She adds that, given the results of tribunals are published, reputational damage is another factor to consider for employers.  

Farrell and Cunningham say that a combination of claims is likely because of the low compensation associated with the flexible working legislation [up to two months’ pay, as stated above] and the limited extent of what the tribunal can consider, that is, the procedure the employer followed, whether the request was taken seriously, whether the decision was based on correct facts and whether one of the permissible grounds for rejecting the request were given. 

Will the new legislation, which puts the emphasis on consultation between employer and employee rather than on employees to make the case, strengthen employees’ rights or make little difference?

For Hoeritzauer it is likely to make little difference. “In practice, most employers already discuss and thereby consult with employees about their requests, particularly if they are concerned about the potential impact of the proposed changes upon the individual, the team and employer,” she says. 

Cunningham and Farrell agree in part, but say that employees who work for employers who tend to make decisions without talking to their employees or considering the merits of their request fully, will see their rights strengthened, giving them more grounds on which to challenge an employer’s decision. They add: “It may also encourage individuals to challenge rejections more in the future as well, as there will be a clear ground to challenge it on if the consultation hasn’t taken place.”  

Sharpe thinks that, combined with other aspects of the new legislation, the requirement to consult could make a difference.  She thinks employers may be behind when it comes to understanding the new criteria, which also includes employees being able to make two requests in a year and employers having to respond within two rather than three months as well as considering alternative ways of working if they turn a request down. She says this  could open them up to litigation.  Nevertheless, she says that it is unclear how the legislation will work in practice. 

Although the requirement to make the business case has been removed, would you still recommend that candidates consider the impact on the business as part of the consultation process rather than just ask for flexibility?

The lawyers agree that it is still important to consider the impact on the business. Hoeritzauer says: “I consider that an employee making a flexible working request should, if possible, provide as much information as possible about the proposed change, including the impact on their work, their team and the organisation. Whilst this may not be required, it does allow the employer to consider the request more fully ahead of any meetings to discuss the request and in turn, to make an informed decision.”

Sharpe agrees, saying that, since the changes have yet to become law, employees should still consider the potential impact on the business  and adds that this should make it easier for an employer to approve a request.

Cunningham and Farrell  state: “It is more likely that an employer will accept a request where they can clearly see that the changes are not going to have an impact on the business. It also helps show that the employee is considering how their working pattern could impact on their colleagues, clients/customers or the service they are providing. This can be reassuring for employers and can help build trust between the employee and employer.” 

They add: “Carrying out this review as part of the process could also help the employee when they are putting together their flexible working proposal. It may highlight where there may be pinch points in the week or month which could make their proposed working arrangement tricky and raise issues they may want to take into account when putting forward their proposal. For example, if they are asking for a Friday off each week but there are already three members of a team who do not work on Fridays, then the employee may want to consider whether they need to have the Friday off or whether suggesting a Monday may also work for them personally and be more likely to be accepted due to the team dynamic.”

*Charlotte, Tabytha, Nikki and Maria all offer free initial advice on employment issues to workingmums.co.uk readers. If you have any question about your employment rights you can send it to [email protected].

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