Rise in flexible working claims

It has recently been reported that in the last year, the number of Employment Tribunal decisions relating to flexible working requests increased by 52% to a record 193 cases. In this article we offer our views on why the number of cases has increased and what employers should be aware of when handling flexible working requests.

The impact of the pandemic

During the first lockdown a large number of employees ended up working from home. It seems highly likely that the number of flexible working requests to employers increased when those employees decided that either they wanted to carry on working from home full-time or that they wanted some other form of flexibility in their role, such as hybrid working or compressed hours.

The pandemic is also likely to have led to certain employees reviewing their circumstances and deciding to make a flexible working request. Examples would include employees with medical conditions, those who had concerns over medically vulnerable relatives, or those who had childcare responsibilities.

As it is likely that more requests for flexible working were being made than before the pandemic, it stands to reason that more Employment Tribunal claims were made by employees when their requests were refused.

The current law around flexible working requests

We set out the current law on flexible working requests and the eight statutory reasons that employers can rely on to refuse a request in our previous article which also considered the Government’s proposals to change some of the rules around these requests.

If an employer breaches the regulations concerning flexible working requests then an employee can issue proceedings in the Employment Tribunal. However, the Employment Tribunal’s role is fairly limited in such matters and is essentially restricted to reviewing the procedure followed by the employer, considering whether the decision was based on correct facts, and deciding whether the reason for refusing the request fell within at least one of the eight the permitted grounds.

Where an Employment Tribunal rules in the employee’s favour, it must make a declaration to that effect and may make either or both of the following:

• An order for reconsideration of the request
• An award of compensation to the employee, up to the permitted maximum of eight weeks’ pay (subject to the statutory cap on a week’s pay which is currently £544)

The fairly low compensation that can be achieved in a stand-alone claim for a breach of the flexible working regulations in addition to the stress, time and potential cost (if legally represented) of Employment Tribunal proceedings often deters employees from bringing such claims unless it is brought in addition to another claim.

What other claims might be brought?

Depending on the employee’s circumstances it may be that they will bring a discrimination claim against their employer alongside a claim for breaching the flexible working regulations. For example, a male employee could argue direct sex discrimination has occurred where they are refused flexible working for childcare reasons because they are a man and their employer believes childcare is less important to them, but their employer would have granted the request if a woman had made it. Another example would be a disabled employee who requires flexibility in their hours of work to avoid the need to travel during rush hour. An employer’s refusal of such a request could lead to claim for a failure to make reasonable adjustments.

An employee might also allege that they were automatically unfairly dismissed for making a flexible working request or subjected to a detriment by their employer after making a request.

Finally, an employee with two years’ continuous employment might resign further to their employer’s refusal to grant their request for flexible working and bring a claim for constructive unfair dismissal, perhaps on the grounds that the refusal or the way in which their request was handled amounted to a breach of trust and confidence.

All of these claims could increase the value of the employee’s claim considerably.

What can employers do to avoid these claims?

Having a policy on flexible working requests to provide the framework for how they will be dealt with and considering each request carefully to take account of personal circumstances are obvious starting points for employers. Seeking legal advice when unsure of the best course of action or just for reassurance can be very worthwhile and is something that we would always recommend.