Businesses here in Jersey and in the UK face increasing challenges and opportunities in the management of Flexible Working Requests (FWR) as legislation develops and extends and case law defines how legislation is likely to be applied and interpreted. Two recent developments in the UK demonstrate what is happening – and what happens in the UK frequently informs the approach adopted by Jersey legislators and Tribunal chairs.
Firstly let us examine the widely reported UK case of Thompson v Scancrown Ltd. Mrs Thompson worked for a high end, small, independent, family owned London estate agent and resigned when her request for flexible working was declined. She complained to the Employment Tribunal identifying five heads of claim.
- Pregnancy and maternity discrimination (not upheld)
- Harassment related to sex (not upheld)
- Indirect sex discrimination -related to the FWR – (succeeded)
- Constructive Unfair dismissal (not upheld)
- Unlawful deductions from wages (not upheld)
The Tribunal found many examples of generous and flexible concessions made by the owner of the Company, including for example, re-arranging a team trip to New York by several months to accommodate the pregnancy, re-arranging the New York daily itinerary to accommodate the pregnancy, allowing the team to take paid time off for her baby shower, paying for the meal and refreshments and providing her with a car so she would not have to use public transport when pregnant.
Currently UK legislation enables an employer to simply say that a FWR cannot be accommodated and give the relevant business reason(s) for doing so. In declining her request the Company identified five of the eight business reasons for declining a FWR as identified in UK legislation. However, despite this, the Tribunal simply disagreed with the owner’s position and ruled that the reasons given were not convincing or proportionate. The Tribunal also appears to have decided that to simply say that a FWR cannot be accommodated and give the relevant statutory business reason(s) for doing so is in their view inadequate. Therefore the claim for indirect sex discrimination succeeded.
Presumably to the Company’s dismay, having demonstrated an exceptionally generous, flexible and supportive approach to her pregnancy, and having applied (to their mind) five genuine business reasons for declining the FWR as allowed by statute, they found themselves the wrong side of the Tribunal process. Apart from the negative publicity for the company created by the widespread reporting of the case, the Tribunal also made an award of £184,961.32. The Company would also have incurred the costs of defending the case, the disruption and distraction to the running of the business and undoubtedly some personal stress for the owner.
The second development in the area of FWR is the current consultation exercise in the UK on significantly extending and strengthening the legislation. The direction of travel is apparent in the title of the exercise – “Making Flexible Working The Default”. The legislative changes being proposed for consideration include:
- Reducing the length of service eligibility to make a FWR from 26 weeks to become a day one right (this is already the case in Jersey)
- Reviewing/Reducing/Revising the eight business reasons for declining a request (there are only six in Jersey)
- Potentially increasing the number of requests that can be made in a 12 month period from the current one, to two, three or unlimited.
- Reducing the time employers have to respond to requests
- Requiring employers to identify alternatives to the FWR rather than simply declining, and placing an obligation on the employer to “negotiate”.
- Greater “encouragement” to employers in regard to granting short term, temporary FWR
The Consultation document concludes by identifying the potential for future legislation to govern working from home, returning to the workplace and hybrid working.
In future it is vital that employers keep an open mind in regard to flexible working and recognise the need to embrace it within the context of their business model. Flexible working offers benefits to employers too. Irrefutable research demonstrates that employees empowered to work flexibly demonstrate greater employee engagement, higher levels of motivation, increased productivity and result in reduced turnover and recruitment costs. The research also suggests that 87% of people would prefer to work flexibly, rising to 92% for young people. A CBI survey found that 99% of businesses believe that a flexible workforce is vital or important to competitiveness, business investment and job creation. 89% of staff surveyed rated flexible working as their key motivator (compared to 77% for financial incentives). The business case for flexible working is compelling and the need to embrace it is inevitable and essential.
THREE IMPORTANT TAKEAWAYS
- Take extreme care when considering a FWR and engage expert HR advice and support at every stage.
- If you employ staff in the UK, respond to the consultation document before the deadline of 1st December 2021.
- Explore ways to enable your business to become an exemplar for flexible working