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Employment Tribunals see 52% Increase in Flexible Working Claims

In January 2022, research showed that the Employment Tribunal had seen a record number of claims relating to flexible working requests: an increase of 52%.  It is expected that this increase was largely as a result of the pandemic and increased care responsibilities at home, but is now more likely being driven by employees that do not want to return to the ‘normal’ office ways.

Flexible working is not easily defined and can be a request from part-time hours to job sharing to working from home and/or mobile working (and potentially anything in between).  However, research suggests the most common flexible working arrangement is still the request for reduced hours and that it is most commonly women making these requests.

With the above in mind, we thought it would be useful to remind employers of the current statutory position in relation to flexible working and their duties.

The current statutory position

The statutory position on flexible working is set out in sections 80F to 80I of the Employment Rights Act 1996. It is as follows:

Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for reason.  If they do so:

  • The employee must trigger the statutory procedure by making a written request
  • The employer has a three-month period to consider the request, discuss with the employee and notify them of the outcome
  • The employer must deal with the application in a reasonable manner
  • The employer can only refuse the request for one (or more) of the eight reasons set out in legislation
  • The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that reason
  • The employee can complaint to an Employment Tribunal
  • The employee can only make one request in any 12-month period

This statutory scheme is supported by the following ACAS guidance which the Tribunal must take into account whenever relevant:

However, this position was conceived around 20 years ago.  Working practices have changed significantly and therefore whether it captures the position today, especially ‘post-COVID’, is doubtful.  The Government has recognised this fact and supports the notion that flexible working is here to stay.  It therefore commenced consultation which ran from September to December 2021.

The consultation sought views from individuals and businesses and set out five key proposals for change in relation to the existing statutory position.  One of these key proposals was to make flexible working a day one right, i.e., to enable an employee to make a request to work flexibly from day one of their employment.

We are unlikely to receive the outcome of this consultation until much later in 2022.

Given the most recent announcements in relation to living with COVID, we expect employers will see a further increase in flexible working requests.  We advise employers to act fairly and reasonably in considering such requests bearing in mind the statutory position set above.  Employers must always be alive to any potential discrimination angle.

A failure to deal with a flexible working request is a standalone claim and is commonly brought alongside a claim of indirect discrimination.  Although the financial implication of the stand-alone claim might not be too much of a concern (maximum eight weeks pay, currently capped at £544 per week), the financial exposure and risk is significantly increased when brought alongside a claim of indirect discrimination.

To assist in avoiding these claims, we advise that an employer has a clear policy on flexible working requests which provides a framework for how they will be dealt with.  It will be vital to consider each request taking into account personal circumstances.

Laura Kelleher, Solicitor

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