The “New Normal”

As flexible, hybrid and home working arrangements become commonplace, Carmel Sunley addresses some of the legal challenges that employers face as they try to navigate the “new normal” of working life.

The pandemic demonstrated that for many people, work can be done anywhere and at any time and doesn’t have to be shoe- horned into the typical nine to five day working from the office. Previously the proportion of workers in the United Kingdom who worked entirely from home was relatively low.

But flexible working seems to be what employees are now looking for. Various research and surveys undertaken by the CIPD, the ONS and the TUC have reported that 91% of those who worked from home during the pandemic want to continue working remotely some of the time.

The numbers continue to grow, as employers reconsider their operating models with an expected increase in the number of hybrid workers, who spend part of their time working from their workplace and part of their time working from a remote location, such as their home.

Indeed, the government’s flexible working taskforce has recommended that flexible working should be the default position for all workers post-pandemic and the Welsh Government has confirmed plans to encourage long-term remote working.

Flexible Working Requests (FWRs)

So, what is the legal position if an employee makes a request to work flexibly?

FWRs and the law in relation to them has not changed post-pandemic. In fact, it has always been relatively easy for employers to reject an application for flexible working under the statutory scheme if it can rely on one or more of the specified statutory grounds. These include: approving the FWR would result in a detrimental impact on performance or quality, an inability to meet customer demand or a burden of additional costs, amongst others.

A recent survey found half of UK working mothers had their flexible working request rejected or only partly accepted. Half of almost 13,000 working mothers who responded to a Trade Union Congress (TUC) and Mother Pukka study on flexible work said their employer had rejected, or only partly accepted, their request for flexible working. Eighty-six percent of the women who were working flexibly said they faced discrimination and disadvantage at work as a result.

The report, Denied and discriminated against, also found that respondents were worried about asking for flexible working. Forty-two per cent were concerned about their employer’s reaction. The same percentage felt there was no point asking as their request would be turned down.

Unlawful Discrimination

But the reasons for refusing FWRs are now potentially harder to establish by employers, given that many office-based employees have successfully worked flexibly during the pandemic.

It is better for employers to accept that flexible working requests will continue to be made and that employers should reconsider their operating models in the light of these requests to avoid the potential of unlawful discrimination claims being brought against them.

With the prevalence of flexible, hybrid and home working arrangements, we are starting to see more women bringing discrimination claims to achieve the result they want with regard to flexible working and this trend is likely to continue. This issue was addressed in the case of Mrs Dobson.

Dobson v North Cumbria Integrated Care

Mrs Dobson was a community nurse. She had three children, two of whom are disabled. Owing to her childcare responsibilities, she had, for a number of years, worked only on Wednesdays and Thursdays. In 2016, her employer issued a new rostering policy and asked her to work flexibly to include working an occasional weekend no more than once a month. Ms Dobson said that she could not work flexibly and was ultimately dismissed for refusing to accept the new working pattern.

The Employment Tribunal first hearing the claim did not find indirect discrimination partly because Mrs Dobson had not put forward any evidence to show that the policy placed women at a particular disadvantage because of their childcaring responsibilities. But on appeal the Employment Appeal Tribunal (EAT) allowed Mrs Dobson’s appeal. The EAT, hearing the case in February 2021, confirmed that the ‘childcare disparity’ still exists. The childcare disparity is likely to be particularly relevant where women are asked to work unpredictable hours, or hours outside the standard working day.

Despite suggestions that we may have moved towards more equal childcare and other caring duties between men and women throughout the pandemic, the EAT held that because of their primary childcare responsibilities, women are less likely to be able to accommodate certain working patterns than men.

Another notable case which hit the press in September 2021 was the case of Mrs Thompson who was awarded compensation which neared £200,000.

Mrs A Thompson v Scancrown Ltd

In this case the Employment Tribunal found the estate agent employer to have indirectly discriminated against Ms Thompson on the ground of sex for refusing her FWR.

Ms Thompson had made a FWR following her return from maternity leave to reduce her hours for childcare reasons and to enable her to leave at 5.00pm instead of her normal 6.00pm in order to collect her child from nursery.

The Employment Tribunal found that refusing to allow Mrs Thompson to finish work at 5.00pm, as nurseries are usually closed by 6.00pm, put her at a particular disadvantage.

Other potential legal claims

An indirect sex discrimination claim is only one mechanism for challenging an employer’s approach to flexible working arrangements and employees may also have claims for harassment, victimisation, failure to make reasonable adjustments and/or constructive unfair dismissal where an employer unreasonably refuses to consider a request for flexible working and/or takes detrimental action against the employee for making the request.

With flexible, hybrid and home working arrangements having become commonplace over the pandemic, it is anticipated that indirect sex discrimination claims from working women with caring responsibilities will increase.

So, navigating the new normal can be challenging for employers in many ways both operationally and legally. Employers need to carefully assess employee’s requests for flexible working, particularly if the flexible working legislation applies or if a discrimination claim is possible in which case the employer will need to justify a refusal.

If you would like any specific advice on any of the issues raised in this article or on any employment law issue please directly contact Carmel Sunley of Sunley Workplace Solutions.