Flexible working request law is changing, but employers can still refuse for eight permitted reasons

The Department for Business Energy and Industrial Strategy has recently published the government’s response to the flexible working consultation, and it would appear a number of recommendations will be enshrined in legislation in the coming months. In particular, employees will have the right to request to work flexibly from the first day on which they start new employment and not, as now, have to wait until they have been continuously employed for 26 weeks.

The Government-commissioned report into flexible working emphasises that this will give more flexibility to those in the workplace and enable more employees to have access to the right to request to work flexibly. However, it may make it that much harder for employers…

It should be emphasised that this remains a request to work flexibly, and does not have to be granted. However, there are also changes coming in with regard to the conditions around flexible working requests.

What are the changes to flexible working requests?

The changes to flexible working requests are:

• Employees will now be able to make up to 2 requests to work flexibly in any 12-month period - up from 1 currently.
• The timeframe for employers to respond to a request reduces to 2 months, down from the current 3 months
• Employers will now have to consult with employees with a view to trying to find alternatives if the employee’s request is not feasible, before rejecting it
• Employees will no longer have to set out in their application how the effects of their request might be managed by the employer
• However, the 8 permitted business reasons for a refusal remain unchanged

Although there is currently no timeline for when these changes will come in, there is a Private Members Bill making its way through Parliament which may implement some of these, so watch this space. The government has also promised more detailed guidance for employers on how to handle flexible working requests.

As if the fundamental change in working practices from the lockdown was not enough to bolster arguments to work flexibly, these changes will ease the way for even more employees.

Key amongst the changes is the removal of the requirement for the employee to think through how their request will affect employers and how the employer can mitigate this. Going forward they won’t have to do this at all which makes their argument for working flexibly that much easier. However, at least the eight permitted reasons remain.

So, on what grounds can flexible working be refused?

The eight permissible reasons for refusing requests work flexibly are, and will remain, as follows:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes

However, it doesn’t end there. While it is generally not too difficult for employers to shoehorn their refusal into one of the permitted reasons, this does not deal with the potential issue of indirect sex discrimination claims. These arise where a particular practice or provision (such as the requirement to work full time hours) applies equally to men as to women, but, because more women than men have childcare responsibilities, fewer women than men are likely to be able to work the requested working pattern or hours.

If the reason for the request is because of childcare responsibilities, and an employer refuses, the employee may be faced with no choice but to resign if she is unable to make the working pattern compatible with home life. She may look at bringing a claim for constructive unfair dismissal on the basis of indirect sex discrimination (and because the constructive dismissal is discriminatory she does not need 2 years continuous service). The burden of proof is then on the employer to demonstrate that the provision causing the indirect discrimination is (in the immortal words of EU law) a “proportionate means of achieving a legitimate aim”.