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Flawed Flexible Working Bill may lead to further discrimination claims

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As a senior employment lawyer, I have considered what the new Flexible Working Bill could mean for my employer and employee clients – in particular, have the changes gone far enough?

Some key concerns with this bill are that it remains only a right to request flexible working, not to receive it, and that it does not yet confirm flexible working requests as a day-one right.

This bill is however a step in the right direction.

For example, the current requirement for an employee to make a ‘business case’ for the change will be dropped, so when making a request, an employee will no longer have to explain what effect, if any, they think their requested change would have on the employer and how any such effect might be dealt with.


 

Flexible working bill receives royal assent: what HR needs to know


 

It is pleasing that an employer will not be permitted to refuse a request unless the employee has been consulted.

That said, it does not seem to go far enough to make a marked difference.

For instance, there does not seem to be any requirement for an employer to fully assess requests, so, I believe employees may still be brushed aside by employers who do not fully understand or wish to support flexible working.

Additionally, an entitlement to make two requests in any 12-month period and reducing the time for an employer to respond from three to two months are insubstantial changes that will not significantly improve on current flexible working rights.

We need more information from the government on these proposed changes. Firstly, what constitutes a ‘consultation’ regarding a request?

The government have confirmed guidance on how to consult will be forthcoming, and this is crucial.

The end-goal of the guidance should mean it is not possible for employers to brush aside an employee’s request with a quick email; they should be required to give proper consideration to the request.

Without effective guidance, I predict an increase in claims to an already stretched employment tribunal from individuals who feel that their flexibility request has not been adequately considered.


Employers need to have fresh conversations about flexible working practices


One of the most significant issues that is not yet clear is exactly when a request can be made.

We need urgent confirmation from the government on whether a request can be made from the first day of employment.

Young parents offered a new job need to be sure they can manage their childcare from the start of their job in order for the change in the law to be of any value.

A corresponding argument is that employees who are 26 weeks (six months in) to their employment will have developed enough rapport/understanding with their employer to know that flexible working would or wouldn’t work, an understanding which employees with less service won’t have.

Finally, there is a suggestion that this bill will be of value to disabled individuals.

If a client came to me discussing an issue at work that could be considered a disability (i.e. having a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities), my advice would not focus on flexible working requests.

Instead, I would advise the employee, in discussions with the employer, to discuss ‘reasonable adjustments’ that could alleviate the negative affect of their disability.

Flexible working requests would be a weaker route to take and may lead employers not to take crucial and legally important adjustments seriously enough.

The flip side of this consideration is of course that individuals who perhaps would be considered as just under the threshold for being legally disabled have another avenue of recourse through which to request support at work.

 

Hina Belitz is a partner and specialist employment lawyer at Excello Law

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