The proposed changes in the law surrounding the right to make flexible working requests

Rebecca: Hello, everybody, and welcome to the next edition of the Employment Insights podcast. Rebecca: My name is Rebecca Cairney, and I am a Partner in the employment team based in Liverpool. Rebecca: I'm joined today by my colleague, Mark Landon, who's a Partner based in our London office. Hello, Mark, and thank you for joining us today. Mark: Hello, and it's a great pleasure. Rebecca: Good. Good. So today, we're going to look at some of the proposed changes in the law surrounding the right to make flexible working requests. So, before we kind of kick off, and just to provide some context, why do you think this is particularly relevant at the moment? Mark: I think, to be honest, it's coupled with the rise in atypical working, and I suppose in a sense that was accelerated by the COVID pandemic. Mark: I mean, what you have got now, I think, yeah, if atypical working is someone doing a normal full-time week based at their employer's premises, I think what you've had, particularly since COVID, has been a huge increase in atypical HR. So agile working, home working, part time, annualized hours, casual, whatever it happens to be. Mark: And if in fact you've been working traditionally, of course, each one of those is going to be preceded by a request for flexible working. So, I think that's why we're really seeing it. I suspect in truth, an awful lot of employees and employers don't consciously think about the right to request procedure. I think they just ask for some sort of atypical working, but I think that's why we've seen a growth in it. And I think more recently, the evolution of the right itself. Rebecca: Yeah. Yeah. So, are you able to, I suppose, set out how the current right to request procedure works? Mark: Sure. I mean, it all started back in 2003 and it was very restricted. I mean, I can remember back then, I think it was that you could make a request for flexible working to look after a child under the age of five or a disabled child under the age of eighteen. Mark: And that was it. Mar: And it was a very prescriptive process. Mark: And then in 2014, a revised scheme came in. I suppose the most radical thing was that you could make a request for flexible working for any reason whatsoever. Mark: You know, it didn't have to be limited to HR duties. Mar: You needed at least six months continuous service and the process was much less prescriptive than before because I think in the early days a lot of employers got caught out by not following due HR. Mark: But essentially since twenty fourteen the employer was obliged to deal with the request in a reasonable manner. They had three months in which to make a decision including any right of appeal although you could agree specifically with the requester to extend that time frame and you could only actually make one formal request in any twelve month period. Mark: And what there were eight business reasons for saying no. And I think a lot of the critics of the right to request flexible working said, well, you know, actually, in a sense, it's quite toothless because if the employer could point to one or more of those eight business reasons, well, you know, at that point, there's not much the employee could do about it. And then in April 2024, we had a further evolution of the right to request. So, it's now a day one right. You don't need six months continuous service. Mark: You can make two formal requests per year rather than one. Mark: One caveat there being you can't make the second request if the first one is still ongoing. Mark: Instead of three months to reach a decision including any appeal the employer now only has two months and I think that's partly reflective of the fact that there are these two opportunities per year. Mark: And again however HR are these eight business reasons for saying no they haven't changed. Although one of the things that was stipulated is that if you as an employer couldn't accept the original request for flexible working, you were bound to consult with the employee and actually come up with any counter proposals that might be put forward as an alternative. Mark: So, you know, in a sense, I think the, you know, certain things remained unchanged. Mark: Yeah. As from last year, you still had to deal with the request in a reasonable manner. You still have these eight business reasons for saying no. Mark: And, actually, the employee could take you to an employment tribunal, if it thought that you were in breach of the process or, you know, hadn't got a good reason for saying no. But, you know, gradually, I think what we've seen is a sort of, deprocessing of it. It's becoming much more flexible. Mark: It's requiring much more dialogue between the employer and the employee before the employer actually says no. And if it does say no, it's got to explain clearly why that is the case. Rebecca: Yeah. Absolutely. And are you able, Mark, to just remind people of what those eight business reasons are on which, employers are able to refuse requests for flexible working? Mark: No. No. Sure. And I think sometimes these are a bit like a Venn diagram in that they overlap. So it's the burden of additional costs. Mark: But I think you're meant to take a sort of commercial big picture view of that. You've really got to have something to back that up. The detrimental effect on meeting customer demand, I think that's one of the most common ones. I mean, if you require people, for example, to work certain core hours because that's when the customer demand is, it's quite hard as an employee to say, oh, I want to be able to work outside those core hours if in fact there's no work for you to do. Mark: An inability to reorganize work amongst existing staff because I think what's sometimes overlooked by people is if, for example, I want to go on to a three-day week or I want to work condensed hours or something, probably someone else has to pick up the slack. And that's something that, you know, even if you take into account things like health and safety, you've got to make sure that you're not unfairly dumping on colleagues. Mrk: An inability to recruit additional staff, detrimental impact on quality. Mark: Again, I think that's one of those things that employers often cite, but the lawyer in this goes, well, where's your proof? How can you show the quality is impacted? So if you're talking about customer demand and quality, have you actually had any complaints, for example? Mark: A detrimental impact on performance. And again, how do you measure that? Mark: Insufficiency of work during the periods when the employee wants to work. And I think that ties in with the sort of customer demand point and then plan structural changes. I mean, if in fact I'm going through a reorganisation of the business, it might just be that you're asking at the wrong time. You know, I might factor in the fact that you would like to work flexibly, but I can't grant it at the moment because we're going through a lot of restructuring, a lot of reorganization, maybe even we're looking at sort of redundancies and whatever it happens to be. So it's not a case of no never. It's a case of no not at the moment. Rebecca: Yeah. That makes sense. Thank you. And so at the moment, can the employment tribunal sort of scrutinize the validity of the reasons which the employer puts forward if they do refuse the request? Mark: Well, sort of yes and no in classic lawyer's answer. But, actually, the ACAS there's an ACAS code of practice, and it supports the current right to request procedure. Mark: And what it says is that when the employer gives a written decision, yay or nay, it's got to set out any additional information which is reasonable to help explain the decision. And so ACAS says you should include the steps which you as an employer took to investigate whether or not you could accept the request, any practical aspects of the job that prevented accepting the request, any alternative options which you considered, any data which you use to help make your decision, e.g. Around staffing levels or recruitment costs, and also any health and safety considerations. Now, essentially, the law says that a tribunal can't question the commercial rationale or business decision behind saying no, and nor can a tribunal substitute its own view. Mark: And strictly speaking, the tribunal's role is restricted to reviewing the procedure, hasn't been properly followed, considering whether the request was taken seriously, consider whether the outcome was based on correct facts and considering whether the reason given falls within one or more of those eight business reasons. Well, there have been some cases where the tribunal got pretty stroppy with employers, because they clearly made no realistic attempt to actually investigate the request. And essentially the employment appeal tribunal in one case said that there was not a shred of evidence that the proper inquiry and proper investigation was carried out. And so if, for example, someone is challenging the decision to say no on the basis that it wasn't based on correct facts, well, by definition, the employment tribunal is going to have to look at what the employer did, what investigations it carried out. So I think whilst we often say it's quite, oh, a tribunal can't look behind it. Mark: I think the reality is that if in fact you've got a good evidential paper trail to show that you have done some investigation, that you have consulted with the employee, and, actually, you've got something to back up one or more of those eight reasons for saying no. I don't think there's much that a tribunal can do. However, if it appears that you've just paid lip service to the request, then I think the tribunal is going to start scrutinizing with greater care exactly what went on. And the other thing to bear in mind, of course, Rebecca, is that, what we often find is that when a request for flexible working is turned down, it's not actually the right to request procedure that someone goes to a tribunal over. It's discrimination law because, you know, you could have I was sort of thinking about this the other day. You could have direct discrimination, direct sex discrimination. Mark: If, for example, an employer was just more minded to grant requests for flexible working from mums than dads on the assumption that well, you know, mums are bound to have more of a role in parenting. Mark: Conversely, of course, you could have an indirect sex discrimination complaint from a mum who is turned down for childcare reasons because, you know, we still know that the law takes judicial notice of the fact that women are the primary childcarers. But added to that, of course, you've also got from the first of January 2024, the right for someone who isn't part of a group that is indirectly discriminated against to bring a sort of, piggyback claim on the basis you've suffered substantially the same disadvantage. Mark: So again, you can see a dad saying, well, if in fact, a female colleague makes a claim for indirect sex discrimination on the basis that statistically women are more likely than men to be the primary childcarer, Well, since January, if I'm in fact the primary child carer, I can I can bring a claim too? You might, of course, have it that the request is linked to a return from maternity leave, which can raise issues. It might be under disability, you know, that actually, and this is a really important point. One always says to clients, if someone is asking for flexible working, try and fathom out whether this is actually a request for a disability related reasonable adjustment, because, you know, sometimes in fact, that is what it is. Mark: Religion or belief, if you want flexible working for religious observance and age. I mean, you know, there have been cases where older people might argue, actually, as I get older, as my capabilities begin to decline, flexible working is a good way of a sort of gradual phased retirement. And if you say no, it might have more of an impact on me because of my physical capabilities. And equally, a youngster might say, well, hang on a minute. Mark: If you're busy sort of favoritizing older people who are making those requests as opposed to younger people, well, again, we know we might go for a sort of an age discrimination complaint. And then I suppose ultimately there is the constructive dismissal route. If you really think that the employer is paying lip service and you think you've got a very valid reason for making the request. So there is a lot out, and I think it a lot of it boils down to, as an employer, have you got a good evidential trail to show that you have actually given proper consideration? Mark: Because I think a bit like, you know, the band of reasonable responses in unfair dismissal law. Mark: I think if a tribunal can see that the employer has weighed up the relevant factors and has come to a decision that that employer would not be able to sustain the flexible working, well, then the tribunal is not gonna substitute its view for that of the employer. But if there isn't evidence of proper consideration, then I think we do become quite vulnerable. Rebecca: Yeah. Absolutely. That that makes sense. Thank you. So what is it then that, the employment rights bill is set to change? What have we got in the pipeline, you know, changes wise in terms of flexible working requests? Mark: Yeah. Well, what it's not is what Labour promised as part of its general election manifesto. And Labour, I don't know if you remember, said it was gonna make flexible working a default option from day one of employment. Yeah. Mark: Well, it's not. So it's already a day one right and has been since April 2024 to ask for flexible working. But what the government are proposing is actually under clause nine of the employment rights bill is that you can only, as an employer, refuse an application for flexible working if both of two conditions apply. The first is that you think you should refuse on one or more of those eight business reasons that have been around since twenty fourteen. Mark: Secondly, however, it must be reasonable for the employer to refuse the application on those grounds or grounds. Mark: And if you do refuse the application, the notification of the decision must state the ground or grounds for refusing the application and must explain why you as the employer think it's reasonable to refuse the application on the ground or grounds. So what we've got is being set out in law. Mark: ACAS said it was good practice to explain the reason why you're saying no. Under the Employment Rights Bill, the law will be changed to say you have to specify exactly the ground for saying no and why you think it's reasonable to say no. Now, of course, it's that second bit, you know, where you've got to show that it's reasonable to refuse the application on one or more of the eight grounds. Once that becomes law, it obviously gives a way in for an employment tribunal to look at the reasoning behind it. I think it's an evolution of what was happening already, but I think it just makes it express. You know? And if I'm an employee and I'm disgruntled with you turning down my request for flexible working. Mark: Well, actually, if I think that you haven't properly explained the reasoning behind that and why it's reasonable to say no, there's a much clearer avenue for challenging your decision. Rebecca: Yeah. Absolutely. That makes sense. I mean, it's all moving in the one direction, isn't it? It you've certainly since, COVID nineteen, we've definitely seen more of a shift towards flexible working. So I suppose it only makes sense HR that that this is the next step again, isn't it? Mark: Well, yeah. Although, I mean, I think what is interesting is I think there has been a pushback against the degree of agile working, which some people were enjoying. Mark: I think it's, you know, it's pretty common now, isn't it, to find employers saying staff must come in at least two or three days a week. Yes. I think the other thing is that I think it was only in the in the newspapers today, talking about the impact on AI on recruitment at sort of entry level into jobs. We've seen recruitment being curtailed by the HR cost of employment, things like national insurance, etcetera. Mark: And, you know, I do wonder whether actually, one, if you're in a difficult economic climate where jobs are harder to come by, you're actually gonna get people being quite so keen to request flexible working. And also, I suppose, is if in fact if there are lots more candidates. I mean, you know, I've certainly come across interviews, you know, for our own firm where people have said, what sort of agile working policy do you have? You know, it's quite a common question, I think, particularly post COVID. Mark: Well, you know, you can see that if you were an employer who didn't really much like flexible working, actually, if the economy is such that there is a dearth of jobs for people, you're probably gonna feel pretty confident in saying in job applications. Well, actually, you know, if we think that we can put forward a decent argument about, you know, standards of service, difficulties to reorganize, etcetera. Mark: We still think we'll get enough people who are actually applying for a role even if we don't actually let it be done flexibly. So I think we are seeing, a slight change. You know, I think 2021 / 2022, most employers were really very, very flexible about allowing people to work from home. I think we're seeing a gradual you know, the pendulum coming back towards the equilibrium. Mark: But I think you are right. I think what we're seeing here is part of the Labour manifesto commitment to give workers increasing rights. Mark: Whether it's the law of unintended consequences, you know, and we've had this around things like day one unfair dismissal complaints. You know, an employer saying, well, why would I take someone on if they're a bit of a risk? Mark: You know, whether the law of unintended consequences waters this down a bit remains to be seen. But I think, you know, one thing the change isn't is it's not gonna make the right to well, it's not gonna make flexible working a default option. That that is certainly not gonna be the case. Rebecca: Yeah. No. Absolutely. Rebecca: Absolutely. Rebecca: Well, that's really, really helpful, Mark. Thank you so much for talking us through that today. Rebecca: And for everybody listening, thank you so much for your time, and for listening in on the Employment Insights podcast. Rebecca: If you do need any assistance with anything employment law related, whether it's flexible working or otherwise, then please feel free to contact myself at Rebecca.cairney@weightmans.com or alternatively Mark on mark.landon@weightmans.com. Thank you again, Mark, and thank you HR for listening.