Flexible working: your rights on return to work

There has been a lot of publicity about changes to flexible working legislation and the granting of a day one right to request flexible working, but the new law won’t come in until next year and the day one right is not yet written into it, a legal expert said at a Return to Work Week on Friday.

Maria Hoeritzauer from Crosslands Solicitors outlined the latest state of play when it comes to flexible working rights. She spelt out what the current legislation means. You have to be in a job for 26 weeks before you can request flexible working; the employer has three months to get back to you; there are eight general grounds on which they can turn down a request, but they must act in a reasonable way; it is best practice to allow an appeal, but not a legal right; you must show you have considered the impact on the business of your request; and you can only put in one request a year.

The new legislation will change this in several ways by shortening to two months the period the employer has to consider your request; by allowing two requests a year; and by introducing an obligation on the employer to consult about the request. The Government has said it will bring in secondary legislation to grant a day one right to request flexible working, but this is not currently in the proposed legislation and it is unclear what day one means, for instance, after you are offered a job or on your first day in a job. She added that some employers offer flexible working from day one in any event so it is worth researching this before you apply.

Maria spoke about employers who are reluctant to grant flexible working requests. She said employees could propose a trial of the new way of working and ask for it to be reviewed at regular intervals before the review ends in order that both parties can consider and address what is or isn’t working. That might make it harder for the employer to reject the request if it has been working.

Tribunal claims

Maria said she had never had a case go to tribunal which was solely based on flexible working legislation. There is usually a sex discrimination or disability discrimination claim alongside it,  sex discrimination as tribunals still see women as the main carers of children if the flexible working is related to childcare issues and disability discrimination if the employer fails to make reasonable adjustments so a person with disabilities can work. This is because the penalty for flouting flexible working legislation is low – eight weeks pay capped at £643. Maria said it is therefore important to say if you are asking for flexible working because of childcare issues. “It flags to them the risk of discrimination,” she said. “And no-one wants to go down that route.”

She cited a recent case which was reported as a flexible working one, although the claimant only got the £643 for the flexible working part, compared to £14K for sex discrimination and a similar amount as compensation for having to find a new job.

Asked if the presumption that women are the main carers might make it harder for dads to get compensation if they are turned down for flexible working, Maria said that, if they could show that a woman had been given flexible working and a man had put in a similar request and it was rejected, there could be grounds for a discrimination case. Nevertheless, she added, each flexible working request should be considered on a case by case basis so an employer can grant someone, for example, part-time hours with a Friday off and then turn down a subsequent person if the business needs someone around on a Friday.

Back to the office

Maria was asked about flexible working patterns being withdrawn, for instance, people being asked to go back to the office more days a week. She said a person’s legal rights would come down to what was written in their contract. For instance, if the contract said their normal place of work with the office and they had been working from home during Covid and were asked to come back in, a worker could not rely on custom and practice [ie that they have been working at home for some time] to refuse to go back to the office. However, she said that employers are keen to retain talent and it is worth having a conversation with the employer and trying to find a middle ground.

Asked if employers could cut pay for homeworkers, Maria said employers should not impose pay cuts as this would be a breach of contract and could be deemed an unlawful deduction of wages and potentially constructive dismissal if the person then left. However, employers could negotiate a pay reduction in consultation with employees and get their agreement or they could let people go and then rehire them on a lower salary, although there is legal risk in doing so.

Maria was also asked if an employer can make you work when you are sick if you are working from home. She said if you are ill and do not feel you can work you should not be obliged to work. However, if you can and wish to do some work you should make it clear that you are working and not on sick leave. Otherwise you may end up being paid Statutory Sick Pay and it might be recorded as a sick day and affect your absence record and, potentially, any bonus payments.

In addition, Maria spoke about:

• Citing custom and practice, for instance, if someone is doing regular overtime and it has become ‘notorious’.  Those extra hours could then be considered part of their implied terms

• Looking at the broader picture of what is happening with regard to flexible working to others in the organisation and perhaps filing a subject access request for access to personal data the employer holds on you

• Keeping contemporaneous notes after meetings with the employer. This can be used, for instance, if the employer makes disparaging comments about women working flexibly

• Getting support from any union in your organisation, for instance, having someone who can accompany you to meetings. Union representatives often have training in dealing with flexible working cases and will know the broader context relating to the employer. In cases where the employer recognises a union they can also influence the company’s flexible working procedures.

*Employees and employers are welcome to contact Crossland Employment Solicitors ([email protected]) to request an introductory call or email regarding flexible working, hybrid and remote working concerns.

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