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The Government has published a consultation seeking views on proposals to expand and improve the flexible working framework.  In this briefing, we look at the proposals for reform, as well as the changes that the Government has declined to take forward.  The consultation closes on 1 December 2021.

What is the consultation about?

The Government’s 2019 manifesto committed to consult on making flexible working arrangements the default save where employers had good reasons not to permit them.  On 23 September 2021, the Government published a consultation entitled “Making Flexible Working the Default”, setting out its proposals for change. 

The consultation opens with the statement that “A world class approach to flexible working is a key part of the Government’s ambition to build back better”.  It highlights how the COVID-19 pandemic has shown us that things can be done differently in the workplace when we have to.  The Consultation says we have had our eyes opened to what is possible, and we must seize the moment to make flexible working in all its forms part of “business DNA”.

These grand statements suggest that radical and substantial proposals for legislative reform will follow.  However, the reality is somewhat more modest, with the emphasis placed on cultural rather than legislative change.  Because the proposed changes are so modest, below, we first outline what is not changing and then what the proposals for reform actually entail. 

What will not be changing?

Employees will not have the right to be granted a flexible working arrangement

Despite the 2019 manifesto commitment – and the name of the Consultation – the proposals do not propose to give employees a right to have a flexible working arrangement.  The Government considered whether this would be the right way to make flexible working the default but concluded that there were too many moving parts for this to be achievable in a practical or sensible way.   The Consultation points to the wide range of different roles and ways of working within them, the multiple forms of flexible working, the broad range of individual needs and the wide range of business models as barriers to a “one size fits all” right to flexible working.

Instead, the Government wants to encourage better discussions about flexible working between employees and employers.  The Consultation proposals are aimed at “rebalancing” the current flexible working framework to support discussions about what may be possible.

Employers will not be required to publish their flexible working policies 

The Government’s July 2019 consultation, Good Work Plan – Proposals to Support Families, contained proposals for large employers (i.e. those with 250+ employees) to publish their flexible working policies.  The Consultation explains that the responses received to the earlier consultation demonstrate that it is important for employers to be able to adapt their flexible working policies to specific workplace scenarios at different times.  Furthermore, there were concerns about what information should be published, meaning that “policy” would have had to be defined in legislation.  It is said that this would create a rigid approach, contrary to the wider policy aim of wishing to encourage conversations between employees and employers.

With these points in mind, and the fact that businesses are still taking stock of which working practices will be effective after the pandemic, the Government has decided not to require employers to publish their flexible working policies.

Employers will not be required to state in job advertisements whether flexible working is available

In addition, employers will not be required to specify in job advertisements whether flexible working is available (and in what form) for a particular job role.  However, the Government believes that its proposal to make the right to request flexible working a “Day 1” employment right will help to deliver cultural change which, in turn, could lead to employers providing this information in job advertisements on a voluntary basis.  

What are the proposals for reform?

The Consultation seeks views on the following five proposals for reform:

Proposal 1 – Should the right to request flexible working become a “Day 1” employment right?

Currently, employees must have 26 weeks’ continuous service with their employer before they can make a flexible working request.  The 26-week threshold was introduced to reduce the burden on employers of administering such requests. However, a previous review of the flexible working legislation did not find evidence that dealing with requests placed an unreasonable costs burden on employers.

The Government believes that the qualification period works against the aim of making flexible working the default and reinforces the perception that it is something an employee must earn or receive as a “perk”.  The proposal is to remove the 26-week threshold and make the right a “Day 1” employment right.  This would expand flexible working rights to a further 2.2 million employees.  The Government also believes that this reform would help to nudge certain behaviours from employers, namely, considering flexible working early in the job design and recruitment processes.

Proposal 2 – Are all of the eight business reasons for refusing a flexible working request still valid?

Currently, an employer may refuse a flexible working request for one of eight business reasons set out in the flexible working legislation.  These are:

• Extra costs that will be a burden on the business.
• The work cannot be reorganised among other staff.
• People cannot be recruited to do the work.
• Flexible working will negatively affect quality.
• Flexible working will negatively affect performance.
• The ability to meet customer demand will be negatively affected.
• There is a lack of work to do during the proposed working times.
• The business is planning structural changes.

The Government is content that the current list does not present a disproportionate barrier to flexible working and it does not see a case for fundamentally changing them.  However, it is recognised that things have changed since flexible working was first introduced and so views are sought on whether these eight reasons remain reasonable.

Proposal 3 – Should employers have to show that they have considered alternatives when rejecting a flexible working request?

Currently, employers who wish to refuse a flexible working request must provide the reason or reasons for refusal (see above).  There is no obligation for them to consider alternative solutions.

The Government wishes to ensure that the law supports informed discussions between employees and employers, including whether, and how, different types of flexible working arrangements could be accommodated.  Therefore, the Consultation seeks views on how practical it is to ask employers to consider alternatives and explain this when rejecting a flexible working request.  It is hoped that building in such a requirement will influence organisational norms among businesses that have not fully considered the opportunities for flexible working.

Proposal 4 – Should employees be able to make more than one request per year and should the time period for employers to respond to requests be changed?

Currently, employees are able to make one flexible working request per year.  Once a request is made, an employer has three months to consider whether the request can be accommodated and provide a response.

The Consultation seeks views on allowing employees to make more than one request per year.  The Government’s view is that it would allow the framework to be more responsive to changes in an individual’s personal circumstances.  The Consultation asks whether there should be a cap on the number of requests that may be made per year – suggesting two, three, more than three or none.

In terms of the employer’s timeframe for response, the Government considers the current three month period to be the right one but seeks views on whether change is needed.  The Consultation suggests alternative periods – the lowest of which is under two weeks.

Proposal 5 – How can employees be encouraged to make requests for temporary changes where needed?

The current flexible working framework already provides for temporary arrangements to be agreed.  However, the Government believes this is underutilised and seeks views on what would encourage employees to make requests to support temporary life changes (e.g. settling a child into school or an elderly parent into a care home).

Is there anything else to know?

Aside from the proposals for legislative reform, the Consultation outlines further work to be undertaken to help make flexible working the default:

Inviting the Flexible Working Taskforce to consider how to move on from Covid 19 and make the most of the lessons learned

The “Flexible Working Taskforce” is a partnership across business groups, trade unions, charities and Government departments.  The Government has asked the Taskforce to take forward what has been learned about working practices throughout the pandemic and develop advice to support new ways of working.  Initially, the Taskforce will focus on the location aspect of flexible working, in particular hybrid working.  Thereafter, it will move on to provide wider advice on best practice around all aspects of flexible working.  The Consultation does not specify when the Taskforce’s advice will be published.

Call for Evidence to be launched on how to secure a flexible working friendly culture across and within organisations

The Government’s view is that flexible working extends beyond requesting contractual changes to terms and conditions: it is also about getting the organisational culture right.  With that in mind, the Government plans to launch a separate Call for Evidence looking at the sorts of extra flexibility people need and how “ad hoc flexibility” can be supported.  The Consultation does not specify when the Call for Evidence will be published.

What steps should employers take now?

Employers wishing to submit their views on the Consultation questions can do so online here.  The Consultation closes on 1 December 2021.

It is not yet clear when the Government will publish a response, but it is unlikely to be before Spring 2022, meaning that the timeframe for legislative change is likely to be the latter half of 2022 (at the earliest).  Accordingly, there are no immediate steps for employers to take.  However, given the shift towards hybrid working caused by the pandemic, now is a good time to take stock of the general approach to flexible working and how it might change in future as many employers will already be doing.

In particular, if the right to request is made a Day 1 right, then it would be sensible to assume that the question will be raised in job interviews.  Therefore, some preliminary thought should be given to whether flexible working arrangements are workable.  Thought should also be given to whether to ask the question of job candidates proactively (on the basis that it is better to understand whether a request is likely to be made in future than to be taken by surprise).  Of course, care must be taken to ask this question, and respond to the answer given, in a non-discriminatory way. 

Consideration should also be given to the management of internal flexible working processes.  If the right is expanded, and employees are also given the right to make multiple requests per year, then employers will have more requests to deal with (and potentially less time to respond to them).  Employers should ensure that processes are streamlined and that sufficient resources are allocated to dealing with incoming requests efficiently. 

Making Flexible Working the Default

If you would like to discuss the issues raised in this article please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

 

 

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An employer’s refusal to allow an employee to make modest adjustments to her working hours following her return from maternity leave has been held to be indirect sex discrimination.  An Employment Tribunal awarded the employee £185,000.

What happened in this case?

Ms Thompson was employed as a Sales Manager by Manors, an estate agency.  Manors covered both sales and lettings, with many international clients.  Ms Thompson was recognised for her good client relationships and it was acknowledged by the company that “down to you, the business is doing well.”

Ms Thompson took a period of maternity leave between October 2018 and October 2019. On her return from maternity leave, she made a flexible working request asking to work four days per week from 9am to 5pm (rather than the standard 6pm).  She wanted to finish work at 5pm in order to pick up her daughter from nursery.  The flexible working request also set out a number of suggestions to make the proposal work including that her maternity leave cover (who was about to revert back to her original position) could fill in for her on her day off and that she would be available on her mobile telephone for any urgent queries between 5pm and 6pm.

Manors refused the request, citing the following business reasons:

• the burden of additional costs;
• the detrimental effect on the ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff; and
• planned structural changes.

Ms Thompson appealed the decision on the basis that the grounds for refusal had not been explained. She referred to ACAS guidance on flexible working, highlighting that there had been no discussion of the request with her, rather it was a flat refusal.  Further, she argued that the request would not result in the burden of additional costs, cause any detriment to meet client demand or require additional staff.

Ms Thompson resigned before the appeal was finalised.  She went on to bring various claims, including a claim arguing that the working hours requirements was indirectly discriminatory on the grounds of sex.

What was decided?

The Employment Tribunal considered whether it was still the case that women are more likely to be the primary carers of children than men, noting that the situation is not as obvious now as it was a generation ago. Ms Thompson adduced evidence to confirm that this is still the case, which was accepted by the Employment Tribunal.  It is worth noting here that this decision was handed down before a recent Employment Appeal Tribunal decision, where it was accepted that the “childcare disparity” is a matter that Tribunals must take into account if relevant, without the need for further evidence.  In other words, although this employee was able to produce evidence to show that women were more likely to have primary child caring responsibilities, there was, in fact, no need for her to have gone to the trouble. The Employment Tribunal also agreed that the working hours requirement placed Ms Thompson at an individual disadvantage.

The Employment Tribunal then turned to consider whether the working hours requirement could be justified.  The Employment Tribunal understood the employer’s concerns about meeting customer demand, coupled with caution about changing the team’s roles during a time when Brexit had caused a period of uncertainty to the property market.  However, it did not follow that the employer was unable to have made the adjustments sought.  Although it would have caused them some difficulty, this did not outweigh the discriminatory impact that the working hours requirement had on Ms Thompson. As such, the requirement was not justified, and the indirect sex discrimination claim succeeded.  Ms Thompson was awarded compensation of £185,000.

What does this mean for employers?

It is critical for employers to consider the rationale and justification for refusing a flexible working request with care.  It is not enough to rely on the list of potential reasons for refusal set out in the law relating to requests for flexible working – a clear explanation is needed.  It is, therefore, important for employers not simply to rely on a template refusal letter; time needs to be taken to tailor the response to the issues that the business is concerned about and explain why the proposal is not viable in that particular individual case.

The Employment Tribunal also mentioned that no consideration was given to the use of a trial period to see whether the feared impacts would transpire. Trial periods are a useful tool which are often overlooked when considering how to respond to a flexible working request.  The pandemic has shown the viability of hybrid and/or flexible working for many roles and, as such, trial periods may be less relevant in some cases.  However, where the request concerns a novel working pattern, consideration should be given to the use of a trial period.

If you would like to discuss any issues arising out of this decision please contact, Emily Plosker (emilyplosker@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Thompson v Scancrown Ltd t/a Manors

 

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In the recent case of Shipp v City Sprint UK Limited an Employment Tribunal unanimously held that a senior employee was unfairly dismissed, harassed and discriminated against on the grounds of maternity/pregnancy and sex.  City Sprint’s argument that Mrs Shipp’s role was redundant following an internal business reorganisation was held to be nothing more than a sham.

What happened in this case?

Mrs Shipp had been employed by City Sprint Limited for 10 years at the date of her dismissal. She began a period of maternity leave on 10 June 2019 and was due to return to work in March 2020. At the time she went on maternity leave, she was City Sprint’s Group Marketing Director and sat on both the City Sprint Executive Board and the Group Executive Board.

She informed her colleagues about her pregnancy in February 2019 and was asked a number of highly inappropriate and intrusive questions from various senior executives.  Such questions concerned when she had stopped using contraception, if her pregnancy was planned, and if she had thought about how the pregnancy would affect her long-term career prospects.  In May 2019, shortly before she went on maternity leave, the Director of Operations said to her: “when you have to leave that little one in nursery, you won’t want to come back”. The CEO also purportedly remarked that they should put a wager on how much weight Mrs Shipp would put on during her pregnancy (however that comment was contested).

Mrs Shipp found these comments offensive and humiliating. She considered making a formal complaint but decided against it because she did not want her maternity leave to be marred by the issue. Furthermore, she was wary about making complaints against senior executives in circumstances where there had already been some allusion to the effects of her pregnancy on her career prospects. Instead, she raised her concerns informally with the Director of Customer Management and the Head of HR before going on maternity leave.

By the end of July 2019, all of the Group Executives (save for Mrs Shipp who was on maternity leave) had either been dismissed, resigned or made redundant. From 1 August 2019, City Sprint began to discuss reorganising the business. Even though Mrs Shipp was the sole remaining member of the Group Executive Board at that time, City Sprint failed to inform or consult with her about the proposed changes. Mrs Shipp first became aware of the proposed reorganisation on 6 September 2019 when she met with City Sprint’s former CEO.

On 20 September 2019, City Sprint sent Mrs Shipp a letter headed “Potential Redundancy – Consultation”. Later that same day, the proposed reorganisation was announced. When Mrs Shipp was shown the new structure charts, she recognised that her Group Marketing Director role had been replaced with a more junior Director of Marketing position, which it was proposed would neither report into the CEO nor have a seat on the reorganised Group Executive Board (now renamed the Operating Board).

This role was later offered to Mrs Shipp, however, it appeared that City Sprint had no genuine desire for her to return to work. Firstly, it was a demotion in seniority within the business structure; secondly, the salary was reduced by £20,000 without any apparent justification; thirdly, there was a new requirement that the role be performed from the London office four days per week, which was likely to be highly unattractive to Mrs Shipp as a new mother living in Wiltshire.

Other employees who had lost their Group Executive positions but had been retained in different roles, had not seen their salaries reduced and, in some cases, the individuals were given pay increases. Also, other senior executives whose teams were based in London were not required to work from the London office four days per week.

Consequently, on 3 December 2019 Mrs Shipp raised a grievance alleging that she had suffered discrimination relating to maternity/pregnancy and sex. On 16 December 2019, she contacted ACAS and commenced early conciliation. On 28 February 2020, she presented her first claim to the Employment Tribunal.  Finally, on 30 March 2020 City Sprint wrote to Mrs Shipp to inform her that her employment would be terminated as her role as Group Marketing Director was redundant and it gave her 6 months’ notice set to expire on 30 September 2020.

Mrs Shipp brought a s a variety of claims, however, in this article we look only at her claim of maternity/pregnancy discrimination.

What was decided?

First, The Employment Tribunal considered whether Mrs Shipp’s claims had been brought in time. It held that although the comments relating to Mrs Shipps’ pregnancy made between February and May 2019 were outside of the three-month time limit, it was just and equitable to extend time so that she could claim for those elements. In so doing, the Employment Tribunal provided useful support for pregnant women who are faced with potentially discriminatory treatment at the start of their maternity leave and who are concerned about the short timeframes within which to bring an Employment Tribunal claim. The Employment Tribunal also held that the discriminatory acts that related to the “sham” redundancy were part of a continued course of conduct and were, therefore, in time.

Having considered whether the claims were in time, the Employment Tribunal went on to find that the evidence demonstrated an intention to push Mrs Shipp out of the business and an awareness that her role was not truly redundant. In particular, an email from a director to the Head of HR stated that once Mrs Shipp had been removed from the company, her replacement could potentially be “promoted to the Board after say 6 months”.  The Tribunal held that the redundancy was a “sham” and the real reason for the unfavourable treatment of Mrs Shipp was because of pregnancy/maternity and/or sex.

What does this mean for employers?

Employers should be careful not to neglect employees on maternity leave during a business reorganisation where those employees would otherwise be entitled to be informed and consulted about any changes. However, the balance here is fine and an employer should be sensitive to each individual situation.  Whilst it is important to keep communication channels open and to provide information in a clear and timely fashion, an employer should also be mindful of the stresses that a new mother may be under and the fact that one of the purposes of maternity leave is to allow a woman to recover after childbirth.

Employers should be careful to avoid discriminating against female employees on the grounds of maternity/pregnancy whether or not a business reorganisation is in prospect. It should take steps to ensure that all staff members receive frequent training in relation to equal opportunities, discrimination and harassment at work.

If you would like to discuss any issues arising out of this decision please contact, James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Shipp v City Sprint UK Limited

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In the recent case of Gwynedd Council v Barratt the Court of Appeal confirmed that, on its own, the absence of a right to appeal against dismissal for redundancy does not make it unfair. However, it is one of the factors to be considered when determining the overall fairness of the dismissal.

What happened in this case?

The two Claimants were teachers employed by the Council to work at a secondary school (School 1).  The Council decided to close School 1 and replace it with a school for children aged between 3 to 18 years of age (School 2).  School 1 was to close at the end of the Summer term in 2017 and the School 2 was due to open in September 2017.

The Council did not consult with the Claimants (or their trade union) about the redundancy procedure at School 1 or the recruitment procedure at School 2. Instead, it invited the Claimants to apply for new roles within School 2.  However, the “new” roles were similar to their old roles at School 1. The Claimants were interviewed for the positions but unlike most of their colleagues, were unsuccessful. In May 2017, the Council gave them notice of dismissal by reason of redundancy, with a termination date of 31 August 2017.  The Claimants were not offered the opportunity to appeal against their dismissals.

The Claimants succeeded in their claims for unfair dismissal. The Employment Tribunal held that the Council’s procedure had been unfair for a number of reasons, including the lack of consultation and appeal.  The Council appealed arguing that the Tribunal had made an error by stating that only in “truly exceptional circumstances” was it acceptable to refuse an employee the right of appeal.

The Employment Appeal Tribunal (EAT) dismissed the appeal, confirming that the Tribunal had correctly applied a test of overall fairness. While the Tribunal had concluded that the lack of any appeal or review process was unfair, and no reasonable employer would have refused to consider an appeal in the circumstances, it had also been concerned by the lack of any opportunity for the employees to raise a grievance against the procedures adopted or be consulted about the dismissals.

The Council appealed again to the Court of Appeal

What was decided?

The Court of Appeal dismissed the Council’s appeal. Agreeing with the EAT’s reasoning, it stated that even though the test of “truly exceptional circumstances” that the ET had applied was incorrect in law, this did not invalidate the Tribunal’s conclusions on the overall fairness of the dismissals.  The Court confirmed that the lack of an appeal or review procedure does not of itself make a redundancy dismissal unfair. Nevertheless, it is one of the elements to be considered when determining the overall fairness of the dismissal.

The decision confirms that where the original selection for redundancy is in accordance with a fair procedure, the absence of an appeal is not fatal to the employer’s defence.  However, where it is questionable, an appeal may save the day for an employer.

What does this mean for employers?

While this decision offers some comfort to employers that a failure to allow an appeal will not mean that the dismissal is inevitably unfair, the safest approach will generally be to offer the employee the opportunity to appeal.

Where it is not practical or desirable to do so, employers need to be especially careful to engage in meaningful consultation and fair selection procedures to reduce the risk of being found to act unfairly.

Gwynedd Council v Barratt

If you would like to discuss any issues arising out of this decision please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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